Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 1 of 6 PageID #: 2116
`
`Original filing date: June 24, 2024
`Redacted filing date: July 1, 2024
`
`

`

`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 2 of 6 PageID #: 2117
`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 2 of 6 PagelD #: 2117
`
`Dear Judge Fallon:
`
`Pursuant to the Court’s Oral Order dated May 17, 2024 (D.I. 62), Plaintiff Orca Security Ltd.
`(“Orca”) and Defendant Wiz, Inc. (“Wiz”) jointly submit this discovery status report.
`
`ORCA’S POSITION: Wiz continues to stall discovery absent Court intervention. Since the
`Court’s May 17 Order, Wiz made its May 24 court-ordered production, produced certain source
`code modules Orca identified as missing, served invalidity contentions, and on June 21 made one
`additional production of 14 documents. Wiz’s productions are deficient, and Wiz continues to
`delay remedying its deficiencies. Wiz also refuses to supplement interrogatory responses or
`produce source code andgit history relevant to Orca’s affirmative case and Orca’s defenses to
`Wiz’s new counterclaims. Wiz also consistently stalls on providing times for teleconferences with
`the Court. Orca thus respectfully requests the Court set regular conferences to address issues the
`parties are unable to resolve after good faith conferences to ensure discovery is efficient.
`
`Status of Discovery: The scope of discovery has broadened since May 17. On June 4, Wizfiled
`counterclaims asserting five patents and incorrectly alleging that Orca has copied Wiz’s product
`development. Orca intends to defenditself against Wiz’s claims, without significant delay in its
`affirmative case. The parties have agreed to just a 2-month extension to the deadline for the close
`of fact discovery, mainly to allow time for contention exchangesrelating to Wiz’s patents. D.I. 85.
`
`There are two parallel tracks for document discovery here: (1) non-custodial and source code, and
`(2) custodial/electronic correspondence (email and slack). The latter track just began and will
`proceed pursuantto the parties’ stipulated ESI agreement, which includesa July 9 date for raising
`ESI disputes with the Court. D.I. 71. The former track progressed after the Court’s May 17 order,
`but has since slowed despite Orca’s efforts, including on multiple meet and confers. As discussed
`below, Orca requests the Court’s assistance with multiple outstanding issues relating to Wiz’s
`(i) May 24 production,(ii) RFP responses, (iii) interrogatory responses, and (iv) source code.
`
`Wiz’s Deficient Court-ordered Production: As the Court ordered, Wiz produced certain
`documents from its most relevant non-custodial sources on May 24. On June 3, Orca explained to
`Wiz that the production had several problems. Over 100 documents were blurry, illegible, had
`cut-off text or missing images, or were missing metadata, hindering Orca’s investigation and
`ability to pursue other discoverable information such as internal Wiz wiki and other pages that
`appear to relate to or discuss Orca and Accused Functionalities. After weeks of asking Wiz to
`correct these deficiencies, Wiz finally produced some updated documents on June 21. But that
`production does not address many issues Orca flagged and still contains blurry or illegible
`documents. There also were substantive gaps in Wiz’s May 24 production, which Orca identified
`on June 3 and Wiz has not responded to. For example, Orca asked Wiz to confirm it producedall
`plainly relevant documents such as oneslabeled ‘AR’ §=Wiz ignored
`this request. Orca also asked Wizto identify the search termsit used to collect documentsafterit
`appeared Wiz hadfiltered its search for JIRA to just 11,000 of at least 40,000 existing documents.
`Weekslater, Wiz responded saying search terms were not used but will not explain howelse it
`arrived at the limited set of JIRA tickets it produced.
`
`Wiz’s Deficient RFP Responses: Wiz’s responses to Orca’s secondset of RFPs followed the same
`pattern as its responses to Orca’s first set of RFPs that necessitated Court intervention. As before,
`Wiz responded to each request with blanket, boilerplate objections and proposals to meet and
`confer. The parties have now met and conferred at least three times where Orca has repeatedly
`explained the relevance of the requests. Yet Wiz refuses to produce responsive documents or even
`search for documentscalled for by the requests, such as documents Wiz received from ThreatOptix
`
`

`

`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 3 of 6 PageID #: 2118
`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 3 of 6 PagelD #: 2118
`
`The Honorable Sherry R. Fallon
`June 24, 2024
`Page 2
`
`(a cloud security company with Orca as its only customer providing functionality in Orca’s patent
`practicing products) containing confidential Orca technical and customerinformation.!
`
`In a May 20 letter, Orca identified numerous
`Wiz’s Deficient Interrogatory Responses:
`deficiencies in Wiz’s supplemental interrogatory responses, including that Wiz’s responsesfail to
`provide relevant information about Wiz products under development (Rog. No. 1); identify
`relevant source code for the Accused Functionalities (Rog. No. 2); address Wiz’s knowledge of
`Related Patents (Rog. No. 4); describe Wiz’s development of the Accused Functionalities (Rog.
`No. 6); provide financial information (Rog. No. 7); and explain when and how Wiz learnedits
`patent prosecution counsel prosecuted patents for Orca (Rog. No. 12). The parties have met and
`conferred on these issues multiple times. Each time, Wiz has injected further delay into discovery
`by demanding additional explanations and case law supporting Orca’s plainly relevant requests,
`or, at best, promising to address self-selected pieces of Orca’s interrogatories on unspecified or
`delayed timeframes. Orca expects to file a discovery motion for these issues.”
`
`Wiz’s Deficient Source Code Production: Three developments since the Court’s May 17 Order
`have confirmed the inadequacy of Wiz’s source code production and the relevance of Wiz’s source
`code change logs. First, Wiz’s May 24 production confirmed Wiz’s source code developmentof
`
`
`Accused Functionalities was motivated by copying Orca. See, e.g., WIZ_0005013
`; WIZ_0005090 iii
`
`Orcais entitled to explore
`
`other evidencereflecting Wiz’s copyingthat will be found in Wiz’s prior source code versions and
`history. Second, Orca asked Wiz to substantively respond to Orca’s Rog 2 by identifying produced
`code for specific Accused Functionalities. That information would show whether Wiz produced
`all relevant code. Wiz must have already donethis to identify the self-selected code it produced,
`yet multiple meet and confers later, Wiz still refuses to provide this basic information. Worsestill,
`Orca’s inspection of Wiz’s code revealed Wiz withheld (and is withholding) relevant source code
`modules for features charted in Orca’s infringement contentions. Third, Wiz’s counterclaims
`allege Orca copied Wiz since 2021 (D.I. 70). These allegations put Wiz’s and Orca’s respective
`product development timing squarely at issue. That timing will be shown in Wiz’s source code,
`and git history and change logs stored with code. Wiz ignores these developments andinsistsit
`need not produce more code because the Court denied without prejudice Orca’s request for Wiz’s
`complete code. The complete code would be appropriate, but, at a minimum, Wiz should be
`ordered to identify the code requested by Orca’s Rog 2 and produceall versions of code and git
`history related to the functionalities either Party identified as relevant to their claims. Wiz vaguely
`suggests below that Orca is seeking “irrelevant” code. Wiz is wrong. The only specific code Wiz
`identified as “irrelevant”is for its Runtime Sensor expressly charted in Orca’s contentions.
`
`! On June 21, Wiz served responses to Orca’s third set of RFPs repeating this sametactic, stating
`only that “Defendant is willing to meet and confer” in response to 20 of the 24 requests.
`* Wiz alleges deficiencies in Orca’s responses to Rogs 2 and 4 and RFP 54. There are no
`deficiencies, which Orca will address in forthcoming teleconference submissions. Orca repeatedly
`confirmed that it has searched for and not identified a specific Microsoft slide deck (Rog 2),
`provided conception and reduction to practice information (Rog 4), and asked Wiz to clarify what
`it is seeking given the overbreadth of RFP 54. Wiz’s position below insinuates for the first time
`that the Microsoft meeting did not happen. That is wrong. Orca’s multiple narrative responses to
`Rog 2 identify the attendees, location, topics, and intentions of the meeting.
`
`

`

`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 4 of 6 PageID #: 2119
`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 4 of 6 PagelD #: 2119
`
`The Honorable Sherry R. Fallon
`June 24, 2024
`Page 3
`
`WIZ’S POSITION: Orca’s claim that Wizis stalling discovery is wrong. Wiz has produced over
`12,000 noncustodial documents of over 33,600 pages, including technical documents, source code,
`price information, release notes, competitive information, and prior art documents.
`It is not true
`that Wiz has not responded to different meet and confer requests. Rather, it is Orca thatstalls
`critical discovery, forcing Wiz to move to compel. For example, Orca’s Complaint highlights a
`May 2019 meeting with “Wiz founders” as the root of Wiz’s alleged copying of Orca. D.I. 15,
`914. Wiz denies such a May 2019 meeting took place. DI. 70, 414. And despite over four
`months of discovery, Orca has provided no evidence that the meeting took place as alleged. Wiz
`has serious concerns about the veracity of Orca’s claims about this May 2019 meeting. Orcaitself
`has already admitted some ofits original allegations are untrue:
`though it publicly alleged that
`“Wiz founders” met with Orca’s founders while at Microsoft (D.I. 15, | 14), Orca now contends
`in discovery that only one ofthe four Wiz founders was involved. Orca must immediately produce
`information to substantiate this central allegation to its case. Similarly, Orca’s response to Wiz’s
`simple request for evidence of the Asserted Patents’ conception and reduction to practice was to
`stall over two monthsbefore identifying only two documents besidesthe patents andfile histories.
`One document has metadata showingit was created the day before the commonpatent application
`for the asserted patents wasfiled; the other has metadata showingit was created after this case was
`filed. Both raise questions about Orca’s response and none answerthis standard interrogatory.
`
`Orca’s strategy is clear: distract from its inability to substantiate its allegations by pointing the
`finger at Wiz in discovery. But there are no discovery disputes warranting court intervention now,
`apart from Orca’s own failures. Orca provides no authority or precedentfor “regular conferences,”
`and such conferences undermine party incentives to resolve disputes without court intervention.
`But such is Orca’s approach, serving RFPs onplainly irrelevant (e.g., a Wiz party) or overbroad
`(e.g., all documents regarding Wiz’s Series B investment) topics. Orca’s pursuit of improper
`discovery that forces Wiz to object and meet and confer should not be rewarded.
`
`Status of Discovery: Discovery has not “slowed despite Orca’s efforts,” as Orca claims. Wiz
`complied with the Court’s May 17 Order (D.I. 62) on May 24, producing 11,000+ documents of
`28,889 pages, including “internal, non-public documents from [its] most relevant non-custodial
`sources.” Jd. As detailed below, Orca’s claim that Wiz’s productionis insufficient is incorrect.
`
`The parties have collectively served 270 RFPs and 35 interrogatories since discovery opened on
`February 14. They continue to exchange discovery correspondence with high frequency, and have
`worked together to amend the ESI Order to add deadlines for custodial ESI discovery. On
`Saturday, June 22, Orca asked—and Wiz agreed—to delay the June 25 deadline to June 27.
`
`Wiz filed its Answer and Counterclaims on June 4, 2024 (D.I. 70), alleging infringementoffive
`Wiz patents—and further, that Orca’s allegations that Wiz copied the idea of serving coffee at a
`conference are wrong. It is Orca that has repeatedly copied Wiz’s patented technology. Jd. J 18-
`29. Two dayslater, Orca requested a 30-day extension to respond to Wiz’s counterclaims. The
`parties negotiated a revised case schedule. D.I. 85.
`
`Pending Discovery Issues:
`
`

`

`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 5 of 6 PageID #: 2120
`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 5 of 6 PagelD #: 2120
`
`The Honorable Sherry R. Fallon
`June 24, 2024
`Page 4
`
`Orca’s Deficient Responses to Wiz’s Interrogatories 2 and 4. As discussed, Wiz intends to move
`to compel on these interrogatories relating to an alleged May 2019 meeting and Orca’s alleged
`conception and reduction to practice of the Asserted Patents.
`
`Orca’s Response to Wiz’s RFP 54. RFP 54 seeks documents “[rlelating to Orca’s competitors.”
`Orca seekslost profits, amongstotherrelief, but refuses to provide discovery about its competitors.
`This is improper and Wiz intends to move to compel.
`
`Wiz’s May 24 Production: Forthe first time, Orca claimsin this joint report that technical issues
`for a small subset of produced documents has “hindered”its investigation. These are all issues
`that Wiz has agreed to address,if it has not already. Wiz provided a production overlay on June
`21 with replacementsofall documents Orca identified, that had technical issues, and all Jira tickets
`(even those not specifically identified), and confirmed that no search terms were used two days
`after Orca’s first request and again at least twice, even though there is no requirement under the
`ESI Discovery Default Standard for it to explain how it identified non-custodial documents.
`
`Orca’s Interrogatories 1, 2, 6, 7, 12: Wiz has not “injected” any “delay” regarding these
`interrogatories, and Orca’s requests are not “plainly relevant” just because it claims so. Wiz has
`substantively respondedtoall these interrogatories. Still, Orca seeks further information. As Orca
`itself has done, consistent with standard discovery practice, Wiz requested explanations and case
`law for the propriety of further supplementation and the parties continue to meet and confer.
`
`Orca’s RFPs 84-90 re: ThreatOptix: Contrary to Orca’s assertion, Wiz has agreed to produce
`documents in responseto all but two RFPs. RFPs 85 and 88 seek information that is, according to
`Orca’s own Complaint, irrelevant to Orca’s claims. Orca claims it invented a “novel agentless
`cloud security platform.” D.I. 15, § 14 (emphasis added); ThreatOptixis a third party that provides
`agent-based technology.
`Its technology is not used by Wiz at all. These requests are another
`fishing expedition, just like Orca’s failed demand for irrelevant source code.
`
`Wiz’s Source Code Production: This Court denied Orca’s previous request that the Court compel
`Wiz to produce its complete code and Git history. D.I. 62. Orca makes the same demand now,
`even thoughit has notsatisfied the standard for seeking reconsideration of a prior order. Nor could
`it—nothing has happenedsince that would support providing all of Wiz’s source code—including
`code irrelevant to Orca’s claims or Wiz’s counterclaims. Orca’s other complaints are similarly
`off the mark. None of the documents Orca cites show that Wiz was “motivated by competing
`with” or “copying” Orca. Far from it, as Wiz’s counterclaims show. Wiz also did not “withhold”
`relevant source code modules. Wiz made all code relevant to Orca’s claims available for
`inspection on April 26. Orca inspected Wiz’s code four times before identifying seven allegedly
`“missing” code modules on May 20. Wiz disagreed those modules needed to be produced,butto
`avoid a dispute, produced code for six of the seven modules. Wiz did not produce the seventh
`because it is not relevant as it relates to Wiz’s agent-based technology, which is the opposite of
`Orca’s alleged agentless technology and is not accused. Orca’s “compromise”is no such thing.
`Orca’s interrogatory requires Wiz to provide source code claim charts for Orca’s infringement
`allegations. Such requests have repeatedly been rejected. Orca cannot put the burden on Wiz to
`chart its own products against Orca’s asserted claims. See Cirba Inc. v. VMware, Inc., 2023 WL
`6799267,at *2 (D. Del. Mar. 30, 2023) (plaintiff owner’s “burden to prove infringement, including
`infringement of each claim element.”’).
`
`

`

`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 6 of 6 PageID #: 2121
`Case 1:23-cv-00758-JLH Document 94 Filed 07/01/24 Page 6 of 6 PagelD #: 2121
`
`The Honorable Sherry R. Fallon
`June 24, 2024
`Page 5
`
`Morris, NICHOLS, ARSHT &TUNNELL LLP
`
`RICHARD, LAYTON & FINGER,P.A.
`
`/s/ Rodger D. Smith II
`
`/s/ Kelly £. Farnan
`
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`1201 North MarketStreet
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
`
`Attorneysfor Plaintiff
`
`June 24, 2024
`
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlficom
`farnan@rlf.com
`haynes@rlf.com
`
`Attorneysfor Defendant
`
`