Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 1 of 5 PageID #: 3273
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`REDACTED - PUBLIC VERSION
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`Original filing date; September 4, 2024
`Redacted filing date: September 11, 2024
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`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 2 of 5 PageID #: 3274
`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 2 of 5 PagelD #: 3274
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`Dear Judge Fallon:
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`Plaintiff Orca Security Ltd. writes in response to Defendant Wiz, Inc.’s discovery teleconference
`letter (D.I. 132) regarding Orca’s responses to Wiz’s Interrogatory Nos. 2 and 4 and Orca’s
`response to Wiz RFP No. 54.
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`As explained in Orca’s opening letter (D.I. 133), Orca has conducted discovery in a fulsome,
`timely, and responsive manner. Unlike Wiz, Orca has producedthe entirety of its source code,
`including prior versions and git history, thousands of technical documents, and over 1.1 million
`pages of email and slack documents. Also,
`in contrast to Wiz, Orca has provided actual,
`substantive responsesto interrogatories and has diligently investigated and produced documents
`responsive to requests for production. Wiz’s complaints about Orca’s discovery responses are
`meritless and, for reasons explained below, should be rejected.
`
`Orca’s Response to Wiz Interrogatory No. 2: Wiz’s Interrogatory No. 2 asked Orca to describe
`the May 2019 meeting at Microsoft between Mr. Avi Shua (Orca’s CIO and co-founder and the
`sole named inventor on all six Orca Asserted Patents) and Wiz’s founders before they left
`Microsoft to start Wiz. D.I. 132, Ex. 1 at 98-99. Orca sufficiently respondedto this interrogatory
`on March 15, 2024 and April 26, 2024, and Wiz’s contrary complaints are unfounded.
`In fact,
`they are contradicted by Wiz’s own letter briefing and exhibits. As Wiz’s papers admit and show,
`Orca has provided two narrative responsesto this interrogatory and has, as requested, identified
`REDACTED
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`100.
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`D.I. 132 at 2; id., Ex. 1 at 99-
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`Wiz’s letter concedes that this meeting took place, and that at least one Wiz founder was present
`atit. D.I. 132 at2. Yet Wiz argues that Orca’s responseis deficient because Orca has not produced
`a specific document “showing discussion of any meeting” with the Wiz founders.
`Jd. As Orca
`has explained, however,
`it
`is not withholding any such documents or otherwise responsive
`information. Orca has searched its most relevant data sources, produced responsive documents
`located—including ORCA_0011803, a presentation given around the same time as the May 2019
`meeting—and confirmed that it has not yet identified any specific presentation for the Microsoft
`meeting. See id., Ex. 2 at 4 (confirming that Orca searched for and hasnotyet identified a specific
`Microsoft “presentation”), 22 (notifying Wiz of ORCA_0011803 produced on March 28, 2024).
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`In addition, as Wiz concedes, Orca repeatedly informed Wiz that it expected further responsive
`information to come from ESI discovery. See D.I. 132, Ex. 2 at 4 (“Orca further explainedthat it
`expects additional information responsive to this request to come from the parties’ electronic
`correspondence discovery that began last week. At a minimum Wiz hasidentified Avi Shua and
`Orca has identified REDACTED aspriority custodians, both of whom were present at the
`Microsoft meeting.”), 13 (“Orca expects further information responsive to this request to come
`from the ESI discovery that will being June 11.”), 18 (“Orca further highlighted that the parties’
`upcoming ESI discovery could also lead to responsive documents.”). That proved true. On
`August 30, 2024, Orca substantially completed production of ESI discovery for four priority
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`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 3 of 5 PageID #: 3275
`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 3 of 5 PagelD #: 3275
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`The Honorable Sherry R. Fallon
`September 4, 2024
`Page 2
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`custodians, and as Orca expected, that production included additional information responsive to
`Interrogatory No. 2—as Wizitself points out. D.I. 132 at 2 n.2.
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`Orca told Wiz months ago that it intended to supplement its response to Interrogatory No. 2 to
`identify further responsive information after ESI discovery is exchanged and additional
`information and documentsare discovered. See, e.g., D.I. 132, Ex. 2 at 13, 18. And, as promised,
`Orcais preparing a supplemental response to identify additional responsive information from its
`August 30 ESI production. The Court should not reward Wiz’s decision to unnecessarily raise
`unfounded complaints about Orca’s responses by ordering any other supplementation.
`
`Orca’s Response to Wiz Interrogatory No. 4: Wiz’s Interrogatory No. 4 asked Orcato describe
`the development of the claimed inventions of its asserted patents, identify the inventor and
`knowledgeable persons, and specify the events of conception, actual and constructive reduction to
`practice, and diligence. D.I. 132, Ex. 1 at 103. Orca sufficiently respondedto this interrogatory
`on March 15, 2024 and May29, 2024.
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`As Wiz’s opening letter shows, Orca’s response identified the inventor of each Asserted Patent
`(Avi Shua), described conception and constructive reduction to practice (citing the provisional
`and/or parent applications to which each Asserted Patent claimspriority, as well as the application
`issuing as each Asserted Patent), and identified knowledgeable persons (Avi Shua). D.I. 132, Ex. 1
`at 103-05. Given that all of Orca’s asserted patents are post-AIA patents underthefirst to file rule,
`further responsesto this interrogatory havelittle if any relevance to the claims and defensesin this
`case. See In re Samuels, No. 2022-1121, 2024 WL 960931, at *2 (Fed. Cir. Mar. 6, 2024)
`(evidence of “earlier conception or an earlier constructive reduction to practice”is “irrelevant to
`the inquiry required under post-AIA 35 U.S.C. 102(a)(1)”); Frazer v. Schlegal, 498 F.3d 1283,
`1288 (Fed. Cir. 2008) (filing of a patent application constitutes “constructive reduction to
`practice”); Hyatt v. Boone, 146 F.3d 1348, 1352 (Fed. Cir. 1998)(it is not necessary to “provide
`evidence of either conception or actual reduction to practice when relying on the content of the
`patent application”).
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`including by
`Nevertheless, Orca has made extensive efforts to address Wiz’s concerns,
`supplementing its related response to Wiz’s Interrogatory No. 6 (Ex. I) and producing and
`identifying significant documentation regarding diligence and actual reduction to practice.
`Specifically, Orca was foundedin late 2018 to bring Mr. Shua’s inventions to market, and Orca’s
`cloud security platform practices the claimed inventions. Showingthis actual reduction to practice,
`Orca has made available for inspection the entirety of its source code, includingprior versions and
`git history, and produced thousands of technical documents from Orca’s founding in 2018 to the
`present, including Jira and confluence documents describing and evidencing developmentof the
`claimed inventions. Wiz has not identified any deficiency in those productions nor specified what
`type of development information is supposedly missing. Orca has also produced documents
`originating from the sole named inventor further supporting his development of the patent-
`practicing Orcaplatform.!
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`Wiz’s letter points out that two of Orca’s cited documents have incorrect metadata. Orca
`1
`intends to reproduce corrected metadata for one of those documents, which shows that
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`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 4 of 5 PageID #: 3276
`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 4 of 5 PagelD #: 3276
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`The Honorable Sherry R. Fallon
`September 4, 2024
`Page 3
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`Wiz argues that Orca “has attempted to flip the burden to Wiz,” but that is contradicted by the
`parties’ correspondence. Given the substantial documents and source code that Orca has already
`produced or otherwise made available for inspection, the narrative responses that Orca already
`provided, and Wiz’s ability to depose the named inventor who Orca already identified as a
`knowledgeable person on this topic, Orca has merely asked Wiz to identify whatelseit is seeking.
`See, e.g., D.I. 132, Ex. 2 at 4-5. Wiz refused to tell Orca what it contends is missing, andits letter
`to the Court likewise fails to specify what else Wiz allegedly needs. D.I. 132. Wiz’s request for
`further supplementation should be denied.”
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`Additionally, Orca did not “stall[] for over two months” before supplementingits initial response
`Interrogatory No. 4. D.I. 132 at 3. Rather, as Wiz’s own papers show, Wiz did not identify what
`it believed to be deficient in Orca’s response until the parties met and conferred on May 21—
`despite Orca requesting such information as early as May 6.
`/d., Ex. 2 at 18. Then, eight days
`later, Orca supplemented its response, including to identify relevant documents from the named
`inventor.
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`Wiz’s complaints also are unreasonable in view of its own discovery tactics. As noted above and
`in Orca’s openingletter, Wiz refuses to describe the developmentof its accused platform,andit is
`withholding source code, git history, and technical documents relevant to its developmentefforts.
`D.I. 133 at 3-4. And, in response to Orca’s interrogatory seeking information about Wiz’s
`development of the alleged inventions in its asserted patents, Wiz merely identified the named
`inventors and stated that its patents are post-AIA patents. See Ex. A (Wiz Resp. to Orca Rog. 17).
`Wiz cannot reasonably complain about Orca’s responseto Interrogatory No. 4 while also refusing
`to provide any meaningful information about its own developmentactivities; those positions are
`irreconcilable.
`
`Orca’s Response to Wiz RFP No. 54: Wiz’s RFP No. 54 asks Orca to produce “All Documents
`and Communications Relating to Orca’s competitors, including but not limited to Wiz.” Orca
`objected to this RFP because,as other courts have found when considering substantially identical
`RFPs,it is “vague and overbroad onits face.” See, e.g., MarketLinx, Inc. v. Industry Access Inc.
`et al., C.A. No. 12-3496, D.I. 84 (C.D. Cal. Jan. 2, 2013) at 7-8 (attached as Ex. B, finding request
`that “seeks the disclosure of ‘[a]ll documents and things relating to Your competitors, ... vague
`and overbroad on its face”); Wilson et al. v. Corning, Inc., C.A. No. 13-210, D.I. 97 (D. Minn
`Jan. 8, 2014) at 3 (attached as Ex. C, “To the extent Plaintiffs seek additional discovery on
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`ORCA_0011812 (D.I. 132, Ex. 7) was last modified December 10, 2018. Orca is investigating the
`metadata for ORCA_0011806 (D.I. 132, Ex. 6) and will provide Wiz corrected information once
`located.
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`Wiz’s request for an order “precluding Orca from offering further evidence regarding
`conception and reduction to practice”is particularly inappropriate considering the current stage of
`discovery. D.I. 132 The parties are set to exchange further ESI requests later this month, no
`depositions have been scheduled(let alone taken), and the fact discovery cut-off is not for another
`eight months. D.I. 90 at 3 (setting May 13, 2025 as Fact Discovery Cut-Off).
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`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 5 of 5 PageID #: 3277
`Case 1:23-cv-00758-JLH-SRF Document 143 Filed 09/11/24 Page 5 of 5 PagelD #: 3277
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`The Honorable Sherry R. Fallon
`September 4, 2024
`Page 4
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`Document Request19, “all documentsrelating to competition in the market for Products, including
`but not limited to any documents that refer to specific competitors,” the motion is DENIED as
`overly broad.”); D.I. 132, Ex. 3 (Orca Resp. to Wiz RFP 54) at 56-57. And, contrary to what Wiz
`states in its letter, Wiz has not limited this request to “a specific set of competitors.” D.I. 132 at 3.
`Wiz’s proposed “narrowing”simply tied the requestto all Orca competitors with respect to Orca’s
`patent-practicing platform. Jd But that platform is Orca’s sole product. Accordingly, Wiz’s
`purportedly narrow “subset” of competitors is no subset at all—it encompasses every Orca
`competitor. This is why Orca asked Wiz to work cooperatively with Orca by identifying the types
`of documents Wiz is actually seeking. See id., Ex. 2 at 5 (“Orca has repeatedly asked Wiz to
`narrow its request or elaborate on the type of documentsit expects in responseto this request. Orca
`remains open to Wiz’s proposal”). Wiz refuses to do so, and the Court should deny its request for
`the same reason.
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`Additionally, Wiz’s insistence that Orca produce all documentsrelating to all competitors cannot
`be squared with Wiz’s own discovery responses. For example, as Orca explained in its opening
`letter brief, Wiz refuses to produce documentsrelating to its competitors, even documentsrelating
`to a competitor whose technologyis integrated into Orca’s platform and with whom both Orca and
`Wiz have interacted. D.I. 133 at 4-5; id, Ex. D at 3 (explaining that “Wiz’s request for all
`documents regarding competitors is not sustainable in view of Wiz’s own refusal to produce
`documents regarding ThreatOptix, considering Orca is Wiz’s competitor and Wiz knew that
`ThreatOptix’s product was specifically used in Orca’s product.”); id., Ex. C at 4 (“Wiz further
`stated that it only would produce such information as related to Orca, not any other competitor or
`integrated platform, despite demanding that Orca provide competitive intelligence information for
`such third parties (see Ex. D (Orca Resps. to Wiz RFPs 61, 63, 65, and 67)). Wiz has never
`explained why Orca must produce information that is analogousto, but far broader in scope than,
`what Wiz unjustifiably withholds.
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`Moreover, Wiz’s citation to case law finding lost profits-related discovery relevant misses the
`mark. D.I. 132 a 3-4 (citing cases). Orca does not dispute that documentsrelating to competition,
`e.g., documents pertaining to market share, are relevantto a lost profits analysis. Orca has already
`agreed to produce such documents in response to other, duplicative document requests, about
`which Wiz does not complain. See, e.g., Ex. E (Orca’s Resps. to Wiz RFP No. 97, 98, 101, 102,
`103). And Orca also has already produced documents in responsetostill other (also duplicative)
`requests for documents, including documents comparing Orca’s platform to multiple competitors,
`such as Prisma, Qualys, Rapid7, and Palo Alto Networks. See Ex. D (Orca Resps. to Wiz RFP
`Nos. 61, 63, 65, 67); Exs. F-H (ORCA_0049646; ORCA_0049655; ORCA_0049663); see also
`D.I. 133, Ex. C at 4. Wiz has not explained the relevance of additional information regarding
`Orca’s competitors beyond what Orca has already produced.
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`Respectfully,
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`/s/ Rodger D. Smith IT
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`Rodger D. Smith II (43778)
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`ce:
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`All Counsel of Record (via electronic mail)
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