Case 1:23-cv-00758-JLH Document 59 Filed 05/13/24 Page 1 of 3 PageID #: 1491
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`Frederick L. Cottrell, III
`302-651-7509
`cottrell@rlf.com
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`May 13, 2024
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`BY CM/ECF
`Hon. Sherry R. Fallon
`U.S. District Court for the District of Delaware
`844 North King Street
`Wilmington, DE 19801-3555
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`Re: Orca Security Ltd. v. Wiz, Inc., 1:23-cv-00758-JLH
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`Dear Judge Fallon:
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`Defendant Wiz, Inc. (“Wiz”) submits this letter for the discovery conference scheduled
`for May 20, 2024. See D.I. 51. Plaintiff Orca Security Ltd. (“Orca”) takes the position that
`“interim deadlines” are required for Wiz’s document productions and responses to Orca’s
`interrogatories, but Orca failed to meaningfully meet and confer with Wiz regarding that position
`before bringing this dispute before the Court. As Wiz will explain in response to Orca’s letter
`brief, such a request is premature at best because the Scheduling Order (D.I. 33) is clear on
`deadlines. Additionally, on May 1, 2024 Orca informed Wiz that its source code was available
`for inspection. Wiz is in the process of reviewing the code, so disputes regarding Orca’s code
`are not ripe at this time. Accordingly, Wiz withdraws the dispute regarding Orca’s refusal to
`make source code available but reserves the right to raise the issue with the Court at the
`appropriate time.
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`I.
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`Interim Deadlines
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`Wiz has repeatedly made clear that Orca’s dispute regarding interim deadlines is not ripe.
`In fact, in discussing Orca’s draft motion for a teleconference, counsel for Wiz sent the following
`email:
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`The draft letter for a teleconference says the parties are at an impasse regarding “Setting
`interim deadlines for Defendant’s document productions and responses to Orca’s
`interrogatories.” The parties have never discussed “interim deadlines,” what those
`deadlines would be or require in terms of production, or the basis for such “interim”
`deadlines. Your citations to correspondence do not at all contradict this. And the
`negotiated Scheduling Order is silent on any “interim deadlines.”
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`Regarding what you do cite, it omits the most relevant parts of our discussions and in fact
`confirms that the parties are not at an impasse on this issue. Wiz has repeatedly made
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`Case 1:23-cv-00758-JLH Document 59 Filed 05/13/24 Page 2 of 3 PageID #: 1492
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`clear that it is not refusing to produce any documents and that it expects to roll out its
`next production by May 10, 2024. Is Orca objecting to May 10 and seeking an earlier
`date? What date? Is Orca demanding a set number of documents by that date or on
`another date? We have never discussed those issues and do not know Orca’s position.
`During the April 23 meet and confer, Wiz agreed to supplement its Interrogatory
`responses and agreed to provide a date certain for some of those requests in the near
`future, and Wiz stated that Wiz could not provide a date certain for the responses that
`refer to document productions because Wiz is planning to produce documents on a
`rolling basis. Is Orca demanding a supplemental response within a certain number of
`days of May 10? If yes, why and what date? Again we have never discussed this.
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`See Ex. 1 at 2.
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`Rather than answering these questions, Orca went ahead and filed the motion on April 25, 2024.
`D.I. 49. On April 30, 2024–five days later and after this issue was already allegedly at an
`impasse, Orca sent over a “the attached amended ESI order that, among other things, identifies
`additional specific interim deadlines for the parties’ document productions, Wiz’s responses to
`Orca’s interrogatories, and procedures for electronic correspondence discovery (e.g., email and
`other messaging applications).” Ex. 1 at 1. This “Amended ESI Order” purports to provide the
`“interim deadlines” (see Ex. 2 at 7-9), that Orca represented to this Court the parties had reached
`an impasse over–even though Orca had never disclosed these proposed “deadlines” before.
`Orca’s own conduct shows it failed to sufficiently meet and confer on this matter before it filed
`the motion for teleconference. See D.I. 33, ¶ 8(g)(ii) (allowing the parties to file a motion for
`teleconference only where “counsel find, after good faith efforts – including verbal
`communications among Delaware and Lead Counsel for all parties to the dispute – that they are
`unable to resolve a discovery matter”).1
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`Orca’s failure to meet and confer is no mere formality as Wiz has repeatedly said the
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`parties are not at an impasse regarding “interim deadlines” because Orca had not proposed any
`such deadlines before bringing this dispute to the Court, and there are none in the Scheduling
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`1 Orca’s request for an “Amended ESI Order” is in fact an attempt to amend the Scheduling
`Order, including providing deadlines for interrogatory responses–which are not part of ESI
`orders. Amending the Scheduling Order requires good cause under Fed. R. Civ. P. 16(b)(4)—
`which is not present here and Orca has never even attempted to show. The parties met and
`conferred on these deadlines on May 9, and Wiz explained that interim deadlines do not belong
`in an ESI order and asked Orca what the purpose of some of its edits to the default ESI Order
`were (e.g. removal of “Cooperation” and “Proportionality” provisions). During the meet and
`confer, Orca demanded a counterproposal to its amendments by the next day, stating that it
`would unilaterally submit its Amended ESI Order unless Wiz did so, because its discovery letter
`brief was due on May 13. Wiz responded that the letter brief was due on Monday only because
`Orca submitted its dispute to the court before proposing any deadlines and while the meet and
`confer process was still ongoing. Still, on May 10, Wiz reiterated its position via email,
`explaining that Wiz does not agree with Orca’s edits and stating that the Scheduling Order does
`not contemplate that the parties replace the default ESI Order. Ex. 3 at 1.
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`Case 1:23-cv-00758-JLH Document 59 Filed 05/13/24 Page 3 of 3 PageID #: 1493
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`Order. To the extent Orca has requested dates regarding document production, Wiz has made
`clear from the very first time Orca raised the issue that Wiz would begin rolling document
`productions in due course. In response to Orca’s repeated demands that Wiz provide a date
`certain by which it would produce documents, Wiz reiterated that it was planning to begin rolling
`document productions. When Orca was dissatisfied with that answer, Wiz asked Orca if there
`were any deadlines before which Orca urgently needed to review Wiz’s documents by, so that
`Wiz could prioritize any such productions. Ex. 1 at 2-3. The only deadline Orca identified was
`its deadline to submit Infringement Contentions (May 10), including Orca stating that it would
`need to review Wiz’s source code before that deadline.
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`In response to that representation, Wiz made its source code available and Orca reviewed that
`code on April 29—well in advance of the deadline Orca highlighted. And, as promised, on May
`10, Wiz made a document production (WIZ_0003038 – WIZ_0004048) with documents
`responding to Orca’s discovery requests. Wiz also supplemented its responses to Orca’s first set
`of Interrogatories on the same day. When Orca again demanded that Wiz provide a date certain
`by which it would complete document production, Wiz stated that while document productions
`would begin to be rolled out on May 10, it could not be certain of when document production
`would be complete but that it would be in advance of the deadline the Scheduling Order
`contemplates for substantial completion of document production. See D.I. 33, ¶ 8(b)
`(“[d]ocument production shall be substantially complete by November 1, 2024.”). Wiz has
`consistently stated it will begin producing documents in a reasonable time frame.
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` The parties have also yet to discuss custodial ESI discovery, which likely will constitute
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`additional substantial documents by both parties. As Wiz stated on April 23, 2024, the parties
`are not, and cannot be at an impasse, because “[t]he parties have also yet to discuss custodial ESI
`discovery, which likely will constitute additional substantial documents by both parties. The
`parties should confer on a reasonable time to exchange search terms and then, once those are
`finalized, talk about a schedule for rolling productions on said search terms.” Ex. 1 at 5. Orca
`did not respond to Wiz’s proposal, other than simply “disagree[ing] that the parties are not at an
`impasse.” Id. at 4.
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`The Court should deny Orca’s motion without prejudice and direct them to meet and
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`confer on these issues as required before bringing a motion requesting a teleconference, as
`required by the Court’s standing order.
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`cc: All Counsel of Record (via email)
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`Respectfully,
`/s/ Frederick L. Cottrell, III
`Frederick L. Cottrell, III (#2555)
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