Case 1:23-cv-00758-JLH-SRF Document 139 Filed 09/10/24 Page 1 of 7 PageID #: 3395
`Case 1:23-cv-00758-JLH-SRF Document 139 Filed 09/10/24 Page 1 of 7 PagelD #: 3395
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ORCA SECURITY LTD.,
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`)
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`v.
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`WIZ, INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No, 23-758-JLH-SRF
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`MEMORANDUM ORDER
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`At Wilmington this 10th day of September, 2024, the court having considered the
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`parties’ letter briefing on the pending discovery motions, (D.I. 132; D.I. 133; D.I. 134; D.I. 135),
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`IT IS ORDEREDthatthe discovery motions are addressed as follows:
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`DEFENDANT’S ISSUES
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`1. Defendant’s motion to compel Plaintiff to provide a complete response to
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`Interrogatory No. 2 is GRANTED. Onor before September25, 2024, Plaintiffshall
`supplementits responseto Interrogatory No. 2 to identify additional responsive information from
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`its August 30, 2024 ESI production and verify that it has no further responsive documents after a
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`fulsome search in accordance with its agreement to do so, (D.I. 134 at 2; D.I. 132, Ex. 2 at 13,
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`18)
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`2. Defendant’s motion to compel Plaintiff to supplement its response to
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`Interrogatory No. 4 is GRANTED-IN-PART. Plaintiff shall supplementits response on or
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`before September 25, 2024 to include corrected metadata for the documents previously produced
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`in accordance with Plaintiff's agreement to provide that information. (D.I. 134 at2 n.1) To the
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`extent that Plaintiffincluded responsive informationin its response to a separate interrogatory
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`regardingfirst offer for sale, Plaintiff shall amendits response to Interrogatory No. 4 to include
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`Case 1:23-cv-00758-JLH-SRF Document 139 Filed 09/10/24 Page 2 of 7 PagelD #: 3396
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`those citations. Gd. at 2) The motion is DENIED without prejudice in all other respects because
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`the response provides a sufficient narrative, and there is no dispute that Plaintiff has produced
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`source code, git history, and technical documents from whichthe requested information can be
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`ascertained. (D.1.132, Ex. 1 at 103-05)
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`3. Defendant’s motion to compel Plaintiff to produce non-privileged documents
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`responsive to Request for Production No. 54 is DENIED without prejudice to renew in a
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`narrowed form. The request, which seeks all documents and communications relating to
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`Plaintiff's competitors, is overbroad. Defendant shall narrow the request by limiting the topic
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`and time period of the requested documents and communications. (D.I. 132, Ex, 2 at 5)
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`PLAINTIFF’S ISSUES
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`4, Plaintiff’s motion to compel Defendant to supplement its response to
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`Interrogatory No. 2 and make available for inspection source code modules for the Accused
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`Product’s accused functionalities is GRANTED-IN-PART. Plaintiff's proposed order seeks
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`an inspection of “all source code modules for the Wiz Accused Product’s accused functionalities,
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`including the features identified in Orca’s infringement contentions and May 20, 2024letter,
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`including the Supply Chain Security feature, Runtime Sensor, and any otherfeatures relating to
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`or using Wiz’s agentless scanning, including all versions of that code and git history from 2020
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`to the present.” (D.L. 133, Proposed Order) The motion is GRANTED withrespect to the
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`Supply Chain Security feature and the Runtime Sensor, as wellas the source code change logs
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`and git history from 2020 to the present for those specific features. The record before the court
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`establishes that these functionalities fall within the scope of Plaintiff’s claims and infringement
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`contentions, as well as Defendant’s response to Interrogatory No. | identifying components in
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`the Accused Product related to the accused functionalities,
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`(D.I, 133 at 2; Ex. E at 10-17; Ex. A
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`at 7-9; Ex. J at WIZ_0032973) As such, they are relevant to allegations of copying because they
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`show the timing of the development of Defendant’s Accused Product. (/d., Ex. F at 5; D.1. 124
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`at &para&para 16-28) Defendant shall make the Supply Chain Security and Runtime Sensor
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`source code modules available for inspection on or before September18, 2024 and shall
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`supplement its response to Interrogatory No. 2 on or before September 25, 2024, The motionis
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`DENIED without prejudice to the extent that it secks “any other features relating to or using
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`Wiz’s agentless scanning” because the requested relief is overbroad,
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`5. Plaintiff’s motion to compel Defendant to supplementits response to
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`Interrogatory No. 6 and preduceall documents relating to the development and operation
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`of the accused functionalities is GRANTED-IN-PART. Defendant does not dispute that
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`Plaintiff proposed a mutual exchangeof search terms to be run against JIRA tickets during a
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`meet and confer. (D.I. 135 at 4) On or before September 18, 2024, the parties shall engage in a
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`mutual exchange of search terms to be run against JIRA tickets and shall engage in a meet and
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`confer promptly following the exchange. Ud., Ex. 2 at 4) On or before September 25, 2024,
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`Defendant shall run the agreed-upon search terms, produce the responsive JIRA tickets, and
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`supplement its response to Interrogatory No.6 to verify that the foregoing production was made.
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`6. Plamtiff's motion is DENIED without prejudice in all other respects, Plaintiff seeks
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`the production of prior source code versions and git history information.
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`(D.I. 133, Proposed
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`Order) Plaintiff acknowledges that Defendant already produced two versions of its code from
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`May20, 2023 and April 22, 2024, andit fails to articulate why this productionis insufficient.
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`(id. at 3) Plaintiff explains in conclusory fashionthat git history would show “whenfeatures and
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`functions were added, modified, oraltered, including through engineers’ notes and comments.”
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`Ud.) But Plaintiff does not identify specific features or functions it wants to investigate or how
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`those specific features and functions are tethered to the claims in this case. Consequently, the
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`request is overbroad and not proportional.
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`7, Plaintiff’s motion to compel Defendantto produceall documents responsiveto
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`Request for Production Nos. 84-90 is DENIED without prejudice, (D.I. 133, Ex. H) Plaintiff
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`has not established how Defendant’s communications with, valuations of, and potential
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`acquisition of ThreatOptix, a third-party cloud security company offering agent-based
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`technology, ave relevant to Plaintiff's claims and prayerforrelief. There is no dispute that the
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`ThreatOptix product is agent-based, and Defendant doesnot offer the product. (D.I. 135 at 4)
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`Onthis record, Plaintiff has not shown how Defendant’s accused agentless functionality is
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`comparable to ThreatOptix’s agent-based technology.
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`8. Plaintiff’s motion to compel Defendant to produce documents responsive to
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`Plaintiff’s “cloud native” ESI search term for the four primary custodians is DENIED
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`without prejudice. There is no dispute that this term comprises multiple terms and exceeds the
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`agreed limit of 10 terms per custodian. (D.I. 108 at 1; D.I. 133, Ex. I at 2-3) This results in a
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`burdensome numberof hit counts,
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`(D.I. 133, Ex. Tat 1-2) This ruling is without prejudice to
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`further efforts by the parties to narrow the term.
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`9, Conclusion. For the foregoing reasons, IT IS ORDEREDthat:
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`® Defendant's motion to compel Plaintiff to provide a complete response to Interrogatory
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`No. 2 is GRANTED,and Plaintiff shall supplementits response n or before September
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`25, 2024 in accordance with this MemorandumOrder.
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`« Defendant’s motion to compel Plaintiff to supplement its response to Interrogatory No. 4
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`is GRANTED-IN-PART. Onorbefore September25, 2024,Plaintiff shall supplement
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`its response to include corrected metadata for the documents previously produced, and
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`Plaintiff shall amend its response to include citations to documents regardingfirst offer
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`for sale. The motion is DENIED without prejudice in all otherrespects.
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`e Defendant’s motion to compel Plaintiff to produce non-privileged documents responsive
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`to Request for Production No. 54 is DENIED without prejudice to renew in a narrowed
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`form.
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`¢ Plaintiff's motion to compel Defendant to supplementits response to Interrogatory No. 2
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`and make available for inspection source code modules for the Accused Product’s
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`accused functionalities is GRANTED-IN-PART. The motion is GRANTED withrespect
`to the Supply Chain Security feature and the Runtime Sensor, as well as the source code
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`change logsand git history from 2020 to the present for those specific features.
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`Defendant shall make the Supply Chain Security and Runtime Sensor source code
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`modules available for inspection on or before September 18, 2024 and shall supplement
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`its response to Interrogatory No. 2 on or before September 25, 2024. The motionis
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`DENIED without prejudice inall other respects.
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`« Plaintiffs motion to compel Defendant to supplementits response to Interrogatory No. 6
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`and produce all documents relating to the development and operation of the accused
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`functionalities is GRANTED-IN-PART, The motion is GRANTED-IN-PART with
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`respect to the JIRA tickets. On or before September 18, 2024, the parties shall exchange
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`search terms and meet and confer on those terms. On or before September25, 2024,
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`Defendant shall run the agreed-upon search terms, produce the responsive JIRA tickets,
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`and supplementits response to Interrogatory No. 6 to verify that the foregoing production
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`was made. Plaintiff's motion is DENIED without prejudice inall other respects,
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`e
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`Plaintiff's motion to compel Defendant to produce all documents responsive to Request
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`for Production Nos. 84-90 is DENIED without prejudice.
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`¢ Plaintiff's motion to compel Defendant to produce documents responsiveto Plaintiff's
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`“cloud native” ESI search term for the four primary custodians is DENIED without
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`prejudice.
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`IT IS FURTHER ORDEREDthat the discovery dispute teleconference scheduled for
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`September 11, 2024 at 3:00 p.m. is CANCELLED.
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`10, Given that the court has relied upon material that technically remains under seal, the
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`courtis releasing this MemorandumOrderunderseal, pending review by the parties. In the
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`unlikely event that the parties believe that certain material in this Memorandum Ordershould be
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`redacted, the parties shall jointly submit a proposed redacted version byno later than September
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`17, 2024, for review by the court, along with a motion supported by a declaration that includes a
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`clear, factually detailed explanation as to why disclosure of any proposed redacted material
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`would “work a clearly defined and serious injury to the party seeking closure.” See In re
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`Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (quoting
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`Miller vy. Ind. Hosp., 16 F.3d 549, 551 Gd Cir. 1994) (internal quotation marks omitted)). If the
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`parties do not file a proposed redacted version and corresponding motion, orif the court
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`determines the motion lacks a meritorious basis, the documents will be unsealed within fourteen
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`(14) days of the date the MemorandumOrderissued.
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`11. This MemorandumOrderis filed pursuant to 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ.
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`P, 72(a), and D, Del. LR 72.1(a)(2). The parties may serve andfile specific written objections
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`within fourteen (14) days after being served with a copy of this MemorandumOrder. Fed. R.
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`Civ. P. 72(a). The objections and responses to the objectionsare limited to four (4) pages each.
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`Case 1:23-cv-00758-JLH-SRF Document 139 Filed 09/10/24 Page 7 of 7 PageID #: 3401
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`12. The parties are directed to the court’s Standing Order For Objections Filed Under
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`Fed, R. Civ. P. 72, dated March 7, 2022, a copy of whichis available on the court’s website,
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`www.ded.uscourts.gov.
` Sherry R. Fa lon: —
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`United States
`agisttate Judge
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