Case 1:23-cv-00758-JLH Document 64 Filed 05/21/24 Page 1 of 6 PageID #: 1725
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
`
`C.A. No. 23-0758-JLH
`PUBLIC VERSION
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`))))))))))
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`ORCA SECURITY LTD.,
`Plaintiff,
`
`v.
`
`WIZ, INC.
`
`Defendants.
`
`LETTER TO THE HONORABLE SHERRY R. FALLON FROM
`FREDERICK L. COTTRELL, III REGARDING DISCOVERY DISPUTE
`
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`RICHARDS, LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19801
`(302) 658-6541
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
`
`Counsel for Defendant Wiz, Inc.
`
`OF COUNSEL:
`Jordan R. Jaffe
`Catherine Lacy
`Callie Davidson
`Alex Miller
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`Praatika Prasad
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019-6022
`(212) 999-5800
`
`Dated: May 14, 2024
`
`

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`Case 1:23-cv-00758-JLH Document 64 Filed 05/21/24 Page 2 of 6 PageID #: 1726
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`Defendant Wiz, Inc. (“Wiz”) submits this letter in opposition to Plaintiff Orca Security Ltd.’s
`(“Orca”) May 13, 2024 letter brief seeking assistance with: (1) Wiz’s purported “deficient”
`production of core technical documents and source code; and (2) setting interim deadlines for
`document productions. D.I. 58. Orca’s arguments regarding Wiz’s core technical documents do
`not engage with the relevant standard in the Court’s Scheduling Order. And for good reason—
`under the applicable standard, Wiz more than sufficiently complied. Orca’s requested “interim
`deadlines” seek to turn the ordinary discovery process into a micromanaged and unworkable
`schedule. Orca cites no precedent for its schedule and no good cause to amend the Scheduling
`Order. Orca’s requested relief should be denied.
`
`Background
`Orca’s unfounded narrative regarding this case is already rapidly coming undone. All
`Orca’s asserted patents stem from the same patent family and same patent application. In its
`Second Amended Complaint, Orca touts the first issued patent in this family despite the fact that
`it is not asserted in this case. D.I. 15, ¶ 10 (referring to “first of these patents [that] issued on
`August 22, 2022” when first asserted patent issued later). Wiz challenged that patent via inter
`partes review, and rather than dispute that it was invalid, Orca statutorily disclaimed all
`challenged claims.1 As shown in Wiz’s pending motion to dismiss (D.I. 17), Orca’s so-called
`copying allegations are similarly meritless. The idea of serving “coffee” at a conference is not
`Orca’s and its reliance on such an allegation shows the weakness of its case. As Wiz will show,
`it is Orca that copied Wiz, not vice versa.
`Orca’s purported history of this case and its characterization of Wiz as “dilatory” in
`discovery is also incorrect. D.I. 58 at 1. The reason for the current stage of the litigation is
`because of Orca, not Wiz. Orca amended its complaint twice, including in response to a motion
`to dismiss by Wiz. Wiz’s operative motion to dismiss Orca’s Second Amended Complaint was
`fully briefed on January 5, 2024. D.I. 23. Orca requested a Rule 16 conference shortly
`thereafter. D.I. 25. The Court entered its Scheduling Order on March 4, 2024. D.I. 33. Orca
`served its initial infringement contentions last Friday, on May 10, 2024. Orca’s assertion that
`Wiz has attempted to “delay discovery” is similarly wrong. D.I. 58 at 1. After discovery opened
`with the parties’ Rule 26 meet and confer on February 21, 2024, Wiz first served discovery that
`same day. Orca did not serve discovery until a week later. D.I. 29.
`Orca also claims that Wiz is somehow applying “a double standard” to discovery. D.I. 58
`at 2. That is again incorrect. Similar to Wiz, Orca offered to meet and confer about 19 of Wiz’s
`RFPs and two interrogatories. Ex. As Orca acknowledges, Wiz has supplemented all but one of
`its responses to Orca’s first set of RFPs. Wiz has also responded to all of Orca’s non-contention
`interrogatories, has produced thousands of pages of documents, and has identified documents by
`Bates number in its interrogatory responses. Orca continues to refuse to supplement seven of its
`responses to Wiz’s RFPs and has provided inadequate information in the three interrogatory
`responses it supplemented. Additionally, while Orca complains Wiz has not produced sufficient
`documents responsive to Orca’s initial RFPs, Orca has not produced documents responsive to
`many of Wiz’s RFPs. See Ex. 1; Ex. 2.
`
`1 Under the Patent Office’s recent proposed rule regarding terminal disclaimers, all the asserted
`patents would now be unenforceable. See
`https://www.federalregister.gov/documents/2024/05/10/2024-10166/terminal-disclaimer-
`practice-to-obviate-nonstatutory-double-patenting
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`Case 1:23-cv-00758-JLH Document 64 Filed 05/21/24 Page 3 of 6 PageID #: 1727
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`Wiz’s Production of Core Technical Documents and Source Code
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`Core technical documents: The Court’s Scheduling Order required Wiz to produce
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`“core technical documents related to the accused product(s), sufficient to show how the accused
`product(s) work(s)” on April 5, 2024. D.I. 33, ¶ 7(b) (emphasis added). Wiz did so. Wiz
`produced nearly 3000 pages of non-public information showing how the Accused Product works.
`Ex. 1 at 18. Still, Orca insists, without explanation, that the production was deficient because
`Wiz did not search for additional relevant information. This is not true. As Wiz has made clear
`to Orca multiple times during meet and confers, Wiz conducted an internal search for documents
`sufficient to show how the Accused Product works and produced them in a timely manner.
`To avoid a dispute, despite disagreeing with Orca’s assertions regarding Wiz’s core
`technical production, Wiz made source code available for inspection well in advance of Orca’s
`infringement contention deadline.2 Any information that was purportedly “missing” from Wiz’s
`core technical document production sufficient to show the operation of the Accused Product’s
`“Wiz Analysis Engine” or the “Wiz console and backend” (D.I. 58 at 2) would have been
`available in Wiz’s source code—which Orca and its experts inspected on April 29 and on May 9,
`2024. Orca does not argue otherwise.
`Contrary to Orca’s assertion, the court in Cirba, did not find that production of source
`code “does not relieve it of its obligation to produce other core technical documents.” 2021 WL
`7209447 at *6. The court instead explained that “the core technical document production is
`usually a beginning and certainly not an end of document production on technical topics” and
`instructed the parties to “work on this a little bit within the request for production process.” Id.
`Wiz has been doing exactly this. Wiz produced core technical documents sufficient to show how
`the Accused Product works over a month ago, and shortly thereafter made source code available
`that should have answered any additional questions Orca may have had regarding how the
`Accused Product works. Wiz has more than produced documents sufficient to show operation of
`the Accused Products. No more is required under the Scheduling Order, and Orca’s letter does
`not attempt to show that Wiz has not produced technical documents “sufficient to show how the
`accused product(s) work(s).” There is no “deficient production” of core technical documents
`that Wiz must “remedy.”3
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`Source code: As an initial matter, “source code” is not properly raised as a separate
`issue apart from Wiz’s core technical production. D.I. 49 at 1 (“Defendants’ deficient
`production of core technical documents, including the scope of source code to be produced.”).
`The Court’s Scheduling Order requires documents sufficient to show operation of the Accused
`Products. Source code is not expressly required to be produced with a core technical document,
`
`2 See Cirba Inc. v. VMWare, Inc., C.A. No. 19-742-LPS, 2021 WL 7209447, at *6 (D. Del. Dec.
`14, 2021); see also PerDiemCo LLC v. CalAmp Corp., C.A. No. 1-20-cv-01397-VAC-SRF (D.
`Del. May 17, 2022) (“plaintiff has not shown that source code should be categorized as a core
`technical document”).
`3 By contrast, Orca’s proposed order asks Wiz be compelled to produce all internal technical
`documents “describing the Accused Product” from various repositories and “the complete
`source code for [the Accused Product] including its git history” by May 24, 2024. That scope of
`production is not required by the Scheduling Order. D.I. 58-1, ¶ 1.
`2
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`Case 1:23-cv-00758-JLH Document 64 Filed 05/21/24 Page 4 of 6 PageID #: 1728
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`but Orca does not dispute that Wiz’s source code is sufficient to show how the Accused Products
`work. That should be the end of this dispute under Orca’s request for relief.
`If considered, Wiz has produced sufficient source code for purposes of its core technical
`production. (To the extent Orca is relying on its document requests, it did not identify any for
`purposes of this dispute.) On the scope of the source code, Wiz identified what it understood as
`the asserted functionality based on Orca’s complaint and identification of accused products. It
`produced source code in two snapshots: one as the code currently exists and a second around the
`time this lawsuit was filed. Wiz offered Orca the option of selecting a third date prior to
`issuance of the patents in suit but Orca never selected any third date. Ex. 1 at 11. Unlike in
`PerDiemCo, Wiz has not taken a hard line that it will not produce additional source code.
`Instead, it has told Orca that if there are additional portions it contends are relevant, it is
`potentially willing to do so. Instead, Orca simply claimed impasse. Id. In fact, even now, after
`Orca has inspected Wiz’s produced code twice, Orca has not identified any specific deficiencies.
`Despite Orca’s improper approach, there are two areas where Wiz understands there to be
`a dispute. The first is on the scope of the produced code. The second is regarding providing a
`full history–every change ever made–to the source code. Neither is warranted.
`First, Orca cannot simply claim that the “complete code is necessary to investigate the
`scope of Wiz’s infringement” (D.I. 58 at 3), without actually explaining why it is necessary and
`what parts of the code that have not been produced are necessary.4 Orca’s request includes code
`that is unrelated to the accused functionality and unreleased code. Orca has not shown that
`producing code untethered to the accused functionality is relevant or proportional to the needs of
`the case. Orca’s other argument that Wiz has only one product and thus must produce
`everything is misplaced. Wiz provides a platform for cloud security. See Ex. 3 at 1 (referring to
`the “Wiz Security Platform”). That Platform provides a number of different services and
`includes different components for doing so. Id. at 11 (listing at bottom 13 different types of
`solutions provided, including functionality such as Supply Chain Security and Automated
`Compliance). Orca has not shown that all this different functionality is relevant to its claims, nor
`could it. For example, counsel is unaware of Apple being required to produce the entire source
`code for the iPhone when a party accuses it of infringement of a narrow software patent. Rather,
`only the relevant code need be produced and is proportional to the case.
`Second, Orca’s claim that Wiz is “withholding [] source code change logs” is similarly
`misleading. D.I. 58 at 3-4. What Orca is actually asking for is the complete source code history
`for all source code ever within Wiz. Every change or comment in history, even before the
`asserted patents issued. Wiz is not aware of any requirement in Delaware for entities to produce
`the entire source code history to competitors. And Orca has identified none.5 On the other hand,
`Wiz has explained to Orca multiple times that producing the entire code is not proportional to the
`
`4 Leader Techs. Inc. v. Facebook Inc., C.A. No. 08-862-JJF-LPS, 2009 WL 3021168, at *3 (D.
`Del. Sept. 4, 2009) is inapposite because there the plaintiff demonstrated “the relevance of the
`entirety of the source code of Facebook’s website” in its infringement contentions and its expert
`explained why all the source code should be made available, which Orca has not even attempted.
`5 HLFIP Holdings, Inc. v. Rutherford Cnty., Tenn., No. 3:19-CV-00714, 2021 WL 6498853, at
`*6 (M.D. Tenn. Feb. 5, 2021) is inapposite because there, the requesting party established
`revision history was relevant after it learned of a “legacy” version of the accused product. Here,
`Wiz has produced source code as of the issuance of the patents and a current version, and Orca
`has not identified any reason more is required here.
`3
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`Case 1:23-cv-00758-JLH Document 64 Filed 05/21/24 Page 5 of 6 PageID #: 1729
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`needs of the case, especially here where Orca is a direct competitor. Lacking any other basis for
`additional source code and in view of Orca’s response to Wiz’s recent IPR, Wiz can only be left
`with the conclusion that Orca seeks to go on a fishing expedition to try and unearth new claims
`on unrelated functionality. This is a patent case; producing irrelevant source code to your direct
`competitor in litigation is not required under the Federal Rules. Wiz properly produced the
`relevant code; no more is required.
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`Interim Deadlines for Document Productions
`The Scheduling Order requires that parties substantially complete document production
`by November 1, 2024. D.I. 33, ¶ 8(b). Orca seeks to amend that order without showing good
`cause. See Fed. R. Civ. P. 16(b)(4). Because it has not done so, its request should be denied.
`If further considered, as Wiz has repeatedly made clear to Orca, and outlined in its
`opening discovery letter brief, Orca’s dispute regarding interim deadlines is not ripe. See D.I. 59.
`Regardless, there is no need for imposing deadlines while both parties have been engaged in
`routine discovery practices. As explained above, Wiz has been engaging with Orca in good faith
`to respond to Orca’s discovery requests. Wiz’s requests to meet and confer and roll out
`productions are typical. Like Wiz, Orca has also requested to meet and confer multiple times
`and has been rolling out productions. Contrary to its assertions, Orca’s productions have not
`included documents responsive to multiple of Wiz’s requests even though Orca agreed to
`produce documents in response to those requests. But Wiz understands that Orca will roll out
`responsive documents in due course. Orca should extend the same courtesy to Wiz and not
`threaten to “run to the Court every time” Wiz does not meet its artificial and unnecessary
`deadlines. D.I. 58 at 4.
`Orca’s proposal is also manifestly unworkable and improper. In its proposed order it
`demands production in response to the entirety of Orca’s first set of RFPs, but does not even
`attach all those RFPs to its response, contrary to the Court’s guidelines for discovery disputes.
`See D.I. 58-2. The RFPs that are attached include such overbroad requests as “All Documents
`and Things relating to the marketing and advertising of the Accused Products…” (RFP 20),
`“Any presentations relating to the Accused Products….” (RFP 44), “All Documents and
`Communications referring or relating to [the Wiz founders] decisions to leave Microsoft and
`found Wiz….” (RFP 45). Id. at 24, 46-47. Orca seemingly seeks every document from the
`entire company. That Orca chose such overbroad RFPs necessitating meet and confers to narrow
`their scope was Orca’s decision, not Wiz’s. Orca should not be rewarded for its overbroad RFPs.
`The proposed date of May 24, 2024, three days after the scheduled teleconference in this
`matter, is also not workable. The parties have yet to exchange search terms or agree on dates for
`doing so, despite Wiz’s suggestion to do so in advance of this motion. Requiring production
`from non-custodial data sources by May 24 is not possible when the parties have yet exchanged
`such search terms, which is part of the normal process and contemplated by the Default
`Standard. Orca has shown no reason for why non-custodial discovery should be complete over 5
`months prior to the date that Orca itself proposed in the Scheduling Order. As Wiz has
`repeatedly made clear, it continues to gathering relevant responsive information and will
`complete document production in advance of the deadline in the Scheduling Order.
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`* * *
`For all the above reasons, the Court should deny Orca’s motion in its entirety.
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`cc: All Counsel of Record (via email)
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`Respectfully,
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`/s/ Frederick L. Cottrell, III
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`Frederick L. Cottrell, III (#2555)
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