Case 1:23-cv-00758-JLH Document 26 Filed 01/19/24 Page 1 of 2 PageID #: 1194
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`Frederick L. Cottrell, III
`302-651-7509
`cottrell@rlf.com
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`January 19, 2024
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`RE: Orca Security Ltd. v. Wiz, Inc., C.A. No. 23-0758-JLH
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`VIA CM/ECF
`The Honorable Jennifer L. Hall
`U.S. District Court for the District of Delaware
`844 King Street, Room 6312
`Wilmington, Delaware 19801
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`Dear Judge Hall:
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`We write on behalf of Defendant Wiz, Inc. (“Wiz”) concerning Plaintiff Orca Security Ltd.’s
`(“Orca”) request that the Court hold a Rule 16(b) scheduling conference. D.I. 25. Wiz respectfully
`requests that the Court deny the request and continue with the common practice in Delaware to
`wait until the pleadings are closed and Court issues an Order directing the parties to confer on a
`schedule. This makes practical sense in this case particularly given that the universe of claims by
`both parties, including Wiz, the defendant, remains unsettled.
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`As Orca is aware, it is common practice in the District of Delaware to wait until after a decision
`on a motion to dismiss and after an answer is filed to hold a Rule 16 Conference. See Bayer
`Healthcare LLC v. Baxalta Inc., C.A. No. 16-1122-RGA, D.I. 26 (denying request for Rule 16
`conference and stating that “[t]he Rule 16 Conference will be scheduled after the Court resolves
`the pending motion [to dismiss].”); see also Nevro Corp. v. Boston Scientific, C.A. No. 21-258-
`CFC-CJB (order setting Rule 16 conference issued after decision on motion to dismiss and answer
`filed); Lit LLC v. Dell Technologies, Inc., C.A. No. 23-121-RGA, D.I. 31 (order setting Rule 16
`conference issued after decision on motion to dismiss indirect and willfulness claims and answer
`filed); Bench Walk Lighting LLC v. LG Electronics, Inc., C.A. No. 20-0051-RGA, D.I. 61 (order
`setting Rule 16 issued after decision on motion to dismiss second amended complaint and answer
`filed); Malvern Paralytical, Inc. v. TA Instruments-Waters LLC, C.A. No. 19-2157, D.I. 29 (order
`setting rule 16 conference issued after decision on motion to dismiss first amended complaint and
`answer filed).
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`It makes practical sense to continue with common Delaware practice in this case in particular.
`First, Wiz has yet to have the opportunity to file a responsive pleading, and thus the universe of
`claims by both parties remains unknown. Wiz and Orca are both operating companies in the
`cybersecurity sector. Wiz may raise counterclaims in response to Orca’s allegations, which should
`be properly accounted for in any case schedule. Otherwise, the parties could have to readjust the
`case schedule, which would be a waste of party and judicial resources. Second, Wiz’s motion to
`dismiss could significantly alter the claims at issue. Wiz’s pending motion to dismiss Orca’s
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`Case 1:23-cv-00758-JLH Document 26 Filed 01/19/24 Page 2 of 2 PageID #: 1195
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`January 19, 2024
`Page 2
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`Second Amended Complaint seeks dismissal of Orca’s indirect and willful infringement claims
`pursuant to Fed. R. Civ. P. 12(b)(6). D.I. 18. While Orca identifies no undue prejudice arising
`from deferring the Rule 16(b) scheduling conference until after the pending motion is resolved,
`there is a real risk of undue prejudice to Wiz if it is forced to incur litigation costs in discovery that
`may ultimately prove unnecessary.
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`Finally, Orca relies on the length of time this action has been pending to support its request. That
`is largely due to Plaintiff's actions and ignores all activity by the parties in the interim. The parties
`agreed to stipulate to the typical extension to respond to Plaintiff’s original complaint. D.I. 8.
`Defendant moved to dismiss (D.N. 12) and Orca then waited until the latest possible day to file an
`amended complaint in response. D.I. 13. Orca then filed yet another amended complaint. D.I.
`15. Wiz filed a motion to dismiss the Second Amended Complaint on November 21, 2024. D.I.
`17. The parties then jointly worked out a stipulation for both parties to extend the briefing schedule
`to accommodate the holidays. D.I. 19. Wiz filed its reply brief on Jan. 5, 2024, resulting in the
`motion to dismiss having been fully briefed for less than two weeks. D.I. 23.
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`Accordingly, Wiz respectfully requests that the Court continue to defer the Rule 16(b) scheduling
`conference until after Defendant’s motion to dismiss is resolved and the pleadings are closed.
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`Enclosure
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`cc:
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`Clerk of Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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`Respectfully submitted,
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`/s/ Frederick L. Cottrell, III
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`Frederick L. Cottrell, III (#2555)
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