Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 1 of 151 PageID #: 1574
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ORCA SECURITY LTD.,
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`WIZ, INC.,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 23-758 (JLH) (SRF)
`
`REDACTED –
`PUBLIC VERSION
`
`LETTER TO THE HONORABLE SHERRY R. FALLON
`FROM RODGER D. SMITH II REGARDING DISCOVERY DISPUTE
`
`OF COUNSEL:
`
`Douglas E. Lumish
`Lucas Lonergan
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`(650) 328-4600
`
`Blake R. Davis
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`(415) 391-0600
`
`Kristina D. McKenna
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`(617) 948-6000
`
`May 13, 2024
`
`MORRIS, NICHOLS, ARSHT &TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
`
`Attorneys for Plaintiff Orca Security Ltd.
`
`Confidential Version Filed: 5/13/2024
`Redacted Version Filed: 5/20/2024
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 2 of 151 PageID #: 1575
`
`Dear Judge Fallon:
`
`Pursuant to the Court’s oral orders dated April 26, 2024 (D.I. 50, 51), Plaintiff Orca
`Security, Ltd. seeks the Court’s assistance with the following issues: (1) Wiz’s deficient
`production of core technical documents, including the scope of its source code production; and
`(2) setting interim deadlines for Wiz’s document productions.
`
`Background
`
`This case, where Orca alleges that Wiz infringes six patents directed to cloud security
`technology and has copied nearly every aspect of Orca’s business (D.I. 15 (SAC) ¶¶ 1-29), has
`been pending for nearly a year. In that time, the Court has already twice rejected Wiz’s attempts
`to delay discovery, first compelling the parties to hold a scheduling conference over Wiz’s
`objections (D.I. 25, 26, 27) and second adopting Orca’s proposed schedule over Wiz’s four-month
`delayed option (D.I. 30, 31). Discovery opened on February 14, 2024, and Orca promptly served
`its first set of requests for production and interrogatories one week later on February 21, 2024.
`Since then, Wiz has engaged in a pattern of delay that has slowed discovery to a crawl.
`
`Beginning with document productions, Wiz provided its initial responses to Orca’s first set
`of requests for production (Nos. 1-83) on March 22, 2024. Ex. B. Those responses were facially
`deficient, using blanket objections as a stalling tactic. For 61 of 83 requests, Wiz stated only that
`it was “willing to meet and confer.” Id. (RFP Nos. 10-31, 35-39, 41, 43-48, 50-59, 62-66, 68, 70-
`72, 75-76, 78-83). When the parties met and conferred, Wiz could not identify any information it
`needed before it could agree to a scope of responsive documents it would produce. See, e.g., Ex.
`C at 2. More than a month after its original responses were due, Wiz served supplemental responses
`agreeing to produce a wide array of documents in response to all but one request, but still actually
`producing nothing. D.I. 47, 54. Wiz also refused to state when it would make any production.
`Finally, when Orca told Wiz it would have to bring Wiz’s delay to the Court, Wiz stated it would
`make a first production on May 10—the same date that Orca’s initial infringement contentions
`were due.1 As to any other document productions, Wiz has responded to Orca’s requests with
`noncommittal assertions that it will produce more documents on a “rolling basis.” E.g., Ex. E at 2.
`According to Wiz, there is no urgency to comply with discovery obligations before the substantial
`completion deadline on November 1, 2024. See Ex. D at 10-11.
`
`Wiz’s approach to interrogatory responses has been similarly dilatory. Wiz’s responses to
`Orca’s Interrogatories (Nos. 1-16) were due on March 22, 2024. Yet Wiz provided no substantive
`response to eight interrogatories directed to basic non-contention factual discovery. See Ex. F.2
`
`
`1 Orca is still reviewing Wiz’s May 10 production, but it appears to include documents from Wiz’s
`public webpage, customer-facing documents from Wiz’s online portal, employee agreements, and
`new employee guidelines. Wiz still has not produced internal documents from Wiz’s “most
`relevant” non-custodial sources. See D.I. 45 (Wiz ESI disclosures).
`2 These interrogatories ask Wiz to identify information basic to any patent case with willfulness
`and copying allegations such as here, including, inter alia, information regarding nomenclature
`for the Accused Products (No. 1), the software and source code used (No. 2), pricing (No. 3),
`development and timing of the Accused Functionalities (No. 6), sales and projected future sales of
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 3 of 151 PageID #: 1576
`The Honorable Sherry R. Fallon
`May 13, 2024
`Page 2
`
`Such information is plainly relevant, discoverable, and in Wiz’s possession. Rather than
`responding, Wiz’s responses referred to future document productions or stated it would be “willing
`to meet and confer.” Id. When the parties met and conferred—four times between April 4 and
`April 23—Wiz repeatedly deferred responding until some unspecified future date. See, e.g., Ex. D
`at 11 (explaining Wiz reneged on prior agreement and delayed providing positions on
`interrogatories), 6 (Orca again asking when Wiz would supplement its responses), 1-2
`(summarizing April 24 meet and confer where Wiz “agreed it would respond to each interrogatory
`but would not provide any dates for those supplements”). On April 30, Wiz supplemented its
`response solely to Interrogatory No. 7 (sales information) by citing a one-page financial summary
`document Wiz produced as part of its “core technical documents.” D.I. 54. On May 10, Wiz finally
`provided its first response to the remaining seven non-contention interrogatories. D.I. 56. For five
`of those responses, Wiz provided no narrative and simply identified Bates-numbered documents
`referring to certain customer-facing documents or employee agreements produced the same day.
`
`Wiz’s foot-dragging approach to discovery has also applied a double standard. Contrary to
`its own discovery failures, Wiz has demanded expansive and detailed productions and responses
`from Orca. Already, Orca has produced over 2,200 documents, made its complete source code
`(and git history) available for inspection, and substantively responded to all interrogatories.
`
`Defendant’s Deficient Production of Core Technical Documents, Including Source Code
`
`Core technical documents: Wiz was required to produce its “core technical documents”
`by April 5, 2024. D.I. 33 at 3. Wiz purported to comply with that obligation by producing just
`three customer-facing technical documents. Orca identified several deficiencies in that production,
`including (1) the strictly customer-facing documents were not sufficient to show the operation of
`the Accused Product’s “Wiz Analysis Engine” or the “Wiz console and backend,” and (2) Wiz did
`not produce any non-public technical information from the most relevant non-custodial data
`sources Wiz identified in its Delaware ESI disclosures (e.g., OneDrive, Box, GitHub, Notion,
`Confluence, and SharePoint). See Ex. D at 16-17; D.I. 45 (Wiz’s ESI disclosures). The parties’
`meet and confer on this issue exemplified Wiz’s improper bare-minimum approach to discovery.
`When Orca asked if Wiz had even attempted to search for internal technical documents from the
`most relevant non-custodial sources, Wiz provided no response. See Ex. D at 9 (memorializing
`Wiz’s commitment to explain whether it searched for internal technical documents by April 15),
`8 (no response from Wiz on search). Wiz also did not dispute Orca’s identified deficiencies. See
`id. at 8-9. Wiz has instead argued its three customer documents were enough to fulfill the Court’s
`“core technical document” deadline for two reasons. Both reasons should be rejected.
`
`First, Wiz argued the core technical document deadline does not require “every” technical
`document. Ex. D at 15-16. That is a strawman. Orca did not request “every” document; it requested
`specific missing information about the Wiz Backend that the produced documents were not
`“sufficient to show,” which Wiz did not dispute. Id. at 16-17. Second, Wiz argued that any
`deficiencies with its core technical document production were remedied by its production of source
`code on April 26, three weeks after the core technical document deadline. Not so. As courts in this
`
`the Accused Products (No. 7), competitive analysis involving Orca’s products (No. 14), Wiz’s
`receipt of documents originating from Orca (No. 15), and hiring of Orca’s employees (No. 16).
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 4 of 151 PageID #: 1577
`The Honorable Sherry R. Fallon
`May 13, 2024
`Page 3
`
`district have explained, “a litigant’s decision to produce source code does not relieve it of its
`obligation to produce other core technical documents.” Cirba Inc. v. VMWare, Inc., No. CV 19-
`742-LPS, 2021 WL 7209447, at *6 (D. Del. Dec. 14, 2021). And here, Wiz did not even search
`for relevant internal technical documents. Ex. D at 8-9.
`
`Source code: The parties also dispute the scope of Wiz’s source code production.3 Wiz
`improperly limits its source code production in three ways by (1) producing code only for the
`specifically named features in Orca’s second amended complaint, (2) producing just two versions
`of code, one from May 30, 2023 and one from April 22, 2024, and (3) stripping out all “history”
`information indicating when features were added, modified, or altered, and comments from Wiz’s
`engineers discussing any changes. Each of these limitations is improper and should be rejected.
`
`First, this district does not permit defendants to limit discovery only to what is expressly
`named in a complaint. PerDiemCo LLC v. CalAmp Corp., C.A. No. 1-20-cv-01397-VAC-SRF (D.
`Del. May 17, 2022) (finding discovery not “limited only to accused products identified in the
`complaint”). And, in any event, there is only one Accused Product and discovery into complete
`source code for an Accused Product is routinely granted. See, e.g., Leader Techs. Inc. v. Facebook
`Inc., No. CIV. 08-862-JJF-LPS, 2009 WL 3021168, at *3-4 (D. Del. Sept. 4, 2009) (ordering
`production of complete Facebook source code). The complete code is necessary for Orca to fully
`investigate the scope of Wiz’s infringement, and it should be produced now to obviate future
`disputes on what code Wiz is withholding.
`
`Second, Wiz’s production of just two versions of source code improperly excludes from
`discovery Wiz’s development and implementation of infringing features, which is directly relevant
`to Orca’s willful infringement claims, copying allegations, and damages theories. Wiz selected
`May 30 as the earliest date of produced source code because that is when the first patent in suit
`issued, but Wiz expressly withdrew its objection to producing pre-issuance source code. See Ex.
`D at 10 (confirming Wiz’s withdrawal of May 2023 date restriction). Wiz should be held to its
`prior agreement. Wiz should also be ordered to produce all versions of its code because that is
`what Wiz demanded from Orca and which Orca already produced. See Ex. D at 13 (Wiz email
`demanding source code in response to Wiz’s RFP No. 55); Ex. G (Wiz’s RFP No. 55) (requesting
`Orca’s code for “released and unreleased [products] and all versions and builds”).
`
`Third, Wiz’s withholding of source code change logs (“Git history”) deprives Orca from
`investigating when features or functionality were added, modified, or altered and from considering
`Wiz’s engineers’ notes and comments about the code. This information is relevant, discoverable,
`stored with Wiz’s source code in the ordinary course of business, and routinely required to be
`produced. See, e.g., HLFIP Holdings, Inc. v. Rutherford Cnty., Tennessee, No. 3:19-CV-00714,
`2021 WL 6498853, at *6 (M.D. Tenn. Feb. 5, 2021) (ordering production of “complete” code and
`“source code revision history”). Despite Orca’s repeated requests, Wiz has not identified any
`burden to collecting this information. Ex. C at 1-2. Indeed, it likely involves only a simple export
`
`
`3 Wiz initially denied that source code constitutes a “core technical document” in this case, but
`that contention is now moot because Wiz finally produced some source code for inspection. The
`parties also do not dispute the logistical aspects of source code production. D.I. 38.
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 5 of 151 PageID #: 1578
`The Honorable Sherry R. Fallon
`May 13, 2024
`Page 4
`
`command—that is all that was required for Orca to produce its complete Git history to Wiz.
`
`In sum, it has been nearly six weeks since the deadline for core technical documents and
`Wiz still has not remedied its deficient productions. Orca therefore requests that Wiz be compelled
`to produce (1) internal technical documents describing the Accused Product from its OneDrive,
`Box, GitHub, Notion, Confluence, and SharePoint repositories, and (2) the complete Accused
`Product source code including its Git history. These should be produced by May 24, 2024 to allow
`Orca time to analyze it before the deadline to exchange claim construction terms on June 21, 2024.
`
`Interim Deadlines for Defendant’s Document Productions
`
`Given Wiz’s serial dilatory tactics from the onset of this case detailed above, Orca further
`asks the Court to impose a May 24, 2024 interim deadlines for the parties to complete initial
`document productions from the most relevant non-custodial sources.4 Orca requests this interim
`deadline in the hopes of avoiding further obstruction by Wiz and so that discovery can progress in
`a timely and orderly way, as required by Rule 1. See Fed. R. Civ. P. 1 (requiring courts to employ
`the Rules to promote “the just, speedy, and inexpensive determination” of every action). Wiz’s
`two arguments to the contrary are unavailing.
`
`First, Wiz contends that deadlines are unnecessary because the Court already set a deadline
`for the substantial completion of documents on November 1. That misses the point. That deadline
`applies to the substantial completion of all documents, but does not create a deadline for document
`requests served in the ordinary course. Responses to such Requests are due 30 days after they are
`served. Fed. R. Civ. P. 34(b)(2)(A). To avoid the need to run to the Court every time Wiz fails to
`produce its documents, Orca proposes that the parties should substantially complete their
`productions responsive to initial discovery requests (that have been outstanding for months) by
`May 24. That will allow the parties to engage in necessary follow-on discovery.
`
`Second, Wiz argued Orca did not properly meet and confer on any “interim deadlines.”
`That is wrong. The parties met and conferred five times, wherein Orca both attempted to propose
`interim deadlines for Wiz’s discovery obligations and asked Wiz to commit to dates certain. See
`supra at 1-2. Wiz repeatedly disregarded those requests because there are no “interim” deadlines
`it must comply with in the schedule. Ex. D at 2; see also id. at 10-11; Ex. E at 2-3. This proves
`Orca’s point that such deadlines are necessary here and the proposed interim deadline will inhibit
`further foot dragging. Wiz’s assertion that there has not been a proper “meet and confer” is also
`symptomatic of a larger problem with Wiz’s approach for discovery: Wiz contends that so long as
`it agrees it will produce documents, there cannot be an “impasse” as to when. The Court should
`reject this tactic. Wiz should not be permitted to withhold requested discovery in an effort to stall
`and run out the clock, nor should it demand Orca remain idle for Wiz to later argue Orca did not
`act soon enough.
`
`Orca respectfully requests the Court enter Orca’s Proposed Order (Ex. A).
`
`
`4 Orca proposed the May 24 deadline to Wiz on April 30. Wiz did not provide a counterproposal.
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 6 of 151 PageID #: 1579
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`Respectfully
`
`/s/ Rodger D. Smith II
`
`Rodger D. Smith II (#3778)
`
`RS/bs
`Attachments
`
`cc: All counsel of record (via email)
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 7 of 151 PageID #: 1580
`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 7 of 151 PagelD #: 1580
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`EXHIBIT A
`EXHIBIT A
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`

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`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 8 of 151 PageID #: 1581
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`ORCA SECURITY LTD.,
`)
`)
`Plaintiff,
`)
`)
`)
`)
`)
`)
`)
`[PROPOSED] ORDER
`
`C.A. No. 23-758 (JLH) (SRF)
`
`v.
`WIZ, INC.,
`
`Defendant.
`
`This _____ day of ____________, 2024, the Court having conducted a discovery dispute
`
`teleconference on May 20, 2024, IT IS HEREBY ORDERED that:
`
`1.
`
`By May 24, 2024, Defendant must produce (1) any relevant and responsive internal
`
`technical documents describing the Accused Product from OneDrive, Box, GitHub, Notion,
`
`Confluence, and SharePoint, and (2) the complete source code for Wiz’s Cloud Security Platform
`
`including git history.
`
`2.
`
`The parties must further comply with the following interim discovery deadlines:
`
`(i)
`
`By May 24, 2024, each Party must substantially complete production of
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`documents, other than email and other electronic messaging, that are responsive to the requesting
`
`Party’s first set of requests for production, subject to the producing Party’s objections, from non-
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`custodial data sources that are identified as containing non-duplicative, discoverable information.
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`For the avoidance of doubt, this includes:
`
`(a)
`
`Plaintiff must substantially complete production of documents that
`
`are responsive to Defendant’s First Set of Requests for Production (Nos. 1-60) dated February 14,
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`2024 from the following data sources: Confluence, Jira, GitHub, Google drive, Google Docs,
`
`Google Sheets, and Electronic data and documents stored in a central repository; and
`
`(b)
`
`Defendant must substantially complete production of documents
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 9 of 151 PageID #: 1582
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`
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`that are responsive to Plaintiff’s First Set of Requests for Production (Nos. 1-83) dated February
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`21, 2024 from the following data sources: OneDrive, Box, GitHub, Notion, Confluence,
`
`SharePoint, and Jira.
`
`
`
`
`
`SO ORDERED, this ____ day of __________, 2024.
`
`
`
`
`
`____________________________________
`UNITED STATES MAGISTRATE JUDGE
`
`2
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 10 of 151 PageID #: 1583
`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 10 of 151 PagelD #: 1583
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`EXHIBIT B
`
`EXHIBIT B
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`

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`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 11 of 151 PageID #: 1584
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`
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`DEFENDANT’S RESPONSES AND OBJECTIONS TO PLAINTIFF’S FIRST SET OF
`REQUESTS (NOS. 1-83) FOR THE PRODUCTION OF DOCUMENTS,
`ELECTRONICALLY STORED INFORMATION, AND TANGIBLE THINGS
`
`Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure and the Local Rules
`
`of the United States District Court for the District of Delaware (“Local Rules”), Defendant Wiz,
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`Inc. (“Wiz” or “Defendant”) hereby responds to Plaintiff Orca Security Ltd.’s (“Plaintiff” or
`
`“Orca”) First Set of Requests (Nos. 1-83) for Production of Documents, Electronically Stored
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`Information, and Tangible Things as follows.
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`RESERVATION OF RIGHTS
`
`Defendant’s responses are based on information currently available to Defendant.
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`Defendant reserves all rights to supplement, revise, and/or amend these responses should
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`additional information become available through the discovery process or by other means.
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`Defendant also reserves the right to produce or use any information or documents that are
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`discovered after service of these responses in support of or in opposition to any motion, in
`
`depositions, or at hearings or trial. In responding to Plaintiff’s First Set of Requests (Nos. 1-83)
`
`for Production of Documents, Electronically Stored Information, and Tangible Things, Defendant
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`does not waive any objection on the grounds of privilege, confidentiality, competency, relevance,
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`C.A. No. 23-758-JLH
`
`
`
`)))))))))
`
`ORCA SECURITY LTD.,
`
`
`
`v.
`
`
`
`
`
`
`WIZ, INC.,
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 12 of 151 PageID #: 1585
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`
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`materiality, authenticity, admissibility of the information contained in these responses, or any other
`
`objection.
`
`GENERAL OBJECTIONS
`
`The following General Objections apply to each of Plaintiff’s Requests. Each response
`
`provided below, and any production of documents are made subject to these General Objections as
`
`well as subject to any specific objections to any Request, without waiver of any such objection.
`
`1.
`
`Defendant objects to each Request to the extent it seeks information that is not
`
`relevant to the claim or defense of any party and is not proportional to the needs of the case.
`
`2.
`
`Defendant objects to each Request to the extent it seeks information or documents,
`
`or purports to impose obligations, beyond the scope of permissible discovery contemplated by the
`
`Federal Rules of Civil Procedure and the Local Rules of this Court.
`
`3.
`
`Defendant objects to each Request to the extent it seeks information protected from
`
`disclosure by the attorney-client privilege and/or the work-product doctrine, the joint defense
`
`privilege, the common interest privilege, any other evidentiary or discovery privilege, or are
`
`otherwise protected from disclosure.
`
`4.
`
`Defendant objects to each Request that is unlimited in time and thus unduly
`
`burdensome and not proportional to the needs of the case. Defendant further objects to each Request
`
`to the extent it seeks information prior to or after the time frame where there could be actionable
`
`infringement. Unless a specific time frame is explicitly provided and/or is compliant with the Default
`
`Standard, Defendant will limit its document search to May 30, 2023 through the filing of this
`
`Complaint.
`
`5.
`
`Defendant objects to each Request to the extent it seeks confidential and/or
`
`proprietary information. Such information, to the extent it is not privileged or otherwise
`
`
`
`2
`
`

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`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 13 of 151 PageID #: 1586
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`
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`objectionable, will be provided only pursuant to the Protective Order to be entered in this action
`
`or applicable local rule.
`
`6.
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`Defendant objects to each Request to the extent it seeks information or documents
`
`that include the confidential business information of third parties and are subject to separate
`
`confidentiality agreements or obligations. Such information and documents will be produced only
`
`pursuant to agreements Defendant has made or subsequently reaches with those third parties.
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`7.
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`Defendant objects to each Request to the extent it seeks information or documents
`
`that are subject to protective orders issued by courts, agencies, or arbitral tribunals prohibiting
`
`production of the requested information or documents.
`
`8.
`
`Defendant objects to each Request to the extent it assumes facts not in evidence.
`
`Defendant’s willingness to respond to any such Request shall not be construed as a concession or
`
`agreement with any implications or conclusions, factual or otherwise, that may be drawn from
`
`such a Request.
`
`9.
`
`Defendant objects to each Request to the extent the information requested therein
`
`is not within the possession, custody, and/or control or that cannot be found in the course of a
`
`reasonable search of Defendant.
`
`10.
`
`Defendant objects to each Request to the extent the information requested is
`
`publicly available and/or equally available to Plaintiff.
`
`11.
`
`Defendant objects to each Request to the extent it is overly broad and unduly
`
`burdensome as seeking all documents, communications, and/or things from all custodians,
`
`associated individuals, or related entities “related to” the requested materials, regardless of
`
`relevance, volume, or time.
`
`
`
`3
`
`

`

`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 14 of 151 PageID #: 1587
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`
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`12.
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`Defendant objects to all Requests that request identification of the “person most
`
`knowledgeable” as beyond the scope of Federal Rule of Civil Procedure 34.
`
`13.
`
`Defendant’s responses herein, and its disclosures or production of documents, do
`
`not in any way constitute an adoption of Plaintiff’s purported definitions of words or phrases
`
`contained in the Requests. Defendant objects to Plaintiff’s definitions to the extent they (a) are
`
`unclear, ambiguous, overly broad, or unduly burdensome; (b) are inconsistent with the ordinary
`
`and customary meaning of the words or phrases they purport to define; (c) seek to impose
`
`obligations different from, or in excess of, those created by the Federal Rules of Civil Procedure
`
`and the Local Rules of this Court; (d) seek to require Defendant to conduct unreasonable searches
`
`for responsive materials from an impermissible number of custodians, associated individuals, or
`
`related entities; (e) include assertions of purported fact that are inaccurate or at the very least are
`
`disputed by the parties to this action; and/or (f) incorporates other purported definitions that suffer
`
`from such defects.
`
`14.
`
`Defendant objects to Plaintiff’s definition of the terms “Wiz,” “Defendant,” “You,”
`
`or “Your” as vague, ambiguous, indefinite, overbroad, unduly burdensome, seeking the production
`
`of information that is not relevant to the claim or defense of any party, not proportional to the
`
`needs of the case, and seeking the production of information that is not within Defendant’s
`
`possession, custody, or control and is not reasonably accessible to Defendant upon reasonable
`
`diligence. In particular, Defendant objects to these definitions to the extent they seek to require
`
`Defendant to answer on behalf of any other person or entity. Defendant responds to these Requests
`
`on its own behalf only.
`
`15.
`
`Defendant objects to Plaintiff’s definition of the terms “Product(s)” and “Accused
`
`Product(s)” as vague, ambiguous, indefinite, overbroad, unduly burdensome, seeking the production
`
`
`
`4
`
`

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`Case 1:23-cv-00758-JLH Document 63 Filed 05/20/24 Page 15 of 151 PageID #: 1588
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`of information that is not relevant to the claim or defense of any party, not proportional to the needs
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`of the case, and is not reasonably accessible to Defendant upon reasonable diligence. Defendant
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`objects to Plaintiff’s definition of the terms “Agentless Scanning” and “Accused Functionality” or
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`“Accused Functionalities” as vague, ambiguous, indefinite, overbroad, unduly burdensome,
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`seeking the production of information that is not relevant to the claim or defense of any party, not
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`proportional to the needs of the case, and is not reasonably accessible to Defendant upon
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`reasonable diligence, including but not limited to because it is not Wiz’s burden nor is Wiz able to
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`determine what products “Orca contends infringe the Asserted Patents.” For example, the
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`purported “Identification of Accused Products” in Orca’s March 8, 2024 disclosures is vague,
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`ambiguous, indefinite, overbroad, and unduly burdensome. To the extent Wiz agrees to produce
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`documents in response to any Request including either of these terms, Wiz understands the
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`Accused Product(s) to mean Wiz’s cloud security platform with CSPM, and the Accused
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`Functionalities to mean CSPM. See, e.g., D.I. 15 ¶ 14.
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`16.
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`Defendant objects to Plaintiff’s definition of the term “Related Patents” as vague,
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`ambiguous, indefinite, overbroad, unduly burdensome , seeking the production of information that
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`is not relevant to the claim or defense of any party, not proportional to the needs of the case, and
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`is not reasonably accessible to Defendant upon reasonable diligence, including but not limited to
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`because it is not Wiz’s burden nor is Wiz able to determine what patent or applications may be
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`“related in any way to the Asserted Patents.” Accordingly, Wiz will not produce any documents
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`or respond to any Requests to the extent they seek information related to “Related Patents.”
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`17.
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`Defendant objects to Plaintiff’s Requests, Definitions, and Instructions to the extent
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`it seeks to impose discovery obligations on Defendant in excess of those or contradicting those set
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`out in the Delaware Default Standard for Discovery, Including Discovery of Electronically Stored
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`Information (“ESI”) and/or any ESI Order governing this case. Accordingly, Defendant will only
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`produce documents in accordance with such an Order.
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`18.
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`Defendant objects to Plaintiff’s definition of the term “Source Code” as vague,
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`ambiguous, indefinite, overbroad, unduly burdensome, seeking the production of information that
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`is not relevant to the claim or defense of any party, not proportional to the needs of the case, and
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`is not reasonably accessible to Defendant upon reasonable diligence. Defendant will only make
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`source code that is responsive and proportional to the needs of the case available for inspection
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`pursuant to an appropriate Protective Order entered by the Court.
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`19.
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`Defendant objects to Plaintiff’s Instructions to the extent they render the Requests
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`unclear and/or unduly burdensome. Defendant also objects to the Instructions to the extent they
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`seek to improperly expand Defendant’ obligations beyond the scope required by the Federal Rules
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`of Civil Procedure, seek information that is not relevant to the claim or defense of any party and
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`is not proportional to the needs of the case, seek the production of information that is not within
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`Defendant’s possession, custody, or control, and are not reasonably accessible to Defendant upon
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`reasonable diligence.
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`SPECIFIC OBJECTIONS AND RESPONSES TO REQUESTS
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`Subject to the foregoing general reservations and objections, as well as the specific
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`objections below, Defendant responds to Plaintiff’s First Set of Requests (Nos. 1-83) for
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`Production of Documents, Electronically Stored Information, and Tangible Things as follows:
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`REQUEST FOR PRODUCTION NO. 1:
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`Documents and Things sufficient to Identify each Accused Product and all versions of each
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`Accused Product and Accused Functionality (including publicly released versions and pre-
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`production engineering versions), including without limitation Documents sufficient to show all
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`and/or control sufficient to identify where the Accused Functionalities (as defined by Wiz) were
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`developed, tested, licensed and/or sold. Defendant will limit its document search to May 30, 2023
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`through the filing of this Complaint.
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`REQUEST FOR PRODUCTION NO. 10:
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`All Documents sufficient to show when You began promoting, marketing, advertising,
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`announcing, or displaying each of the Accused Products and/or the Accused Functionalities.
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`RESPONSE TO REQUEST FOR PRODUCTION NO. 10:
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`Defendant incorporates all of its general objections and reservations of rights as if
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`specifically set forth herein. Defendant specifically objects to this Request to the extent it seeks
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`information that is not relevant to the claim or defense of any party and is not proportional to the
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`needs of the case. Defendant objects to this Request to the extent it seeks information protected
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`from disclosure by the attorney-client privilege and/or work-product doctrine, or any other
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`applicable privilege or protection. Defendant objects to this Request as vague, ambiguous, and
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`unduly burdensome at least as to the phrases “began,” “promoting, marketing, advertising,
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`announcing, or displaying,” “each of,” “Accused Products,” and “Accused Functionalities” as used
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`in this Request. Defendant objects to this Request as overly broad and unduly burdensome as
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`seeking “[a]ll documents” to show when Wiz “began promoting, marketing, advertising,
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`announcing, or displaying each of the Accused Products and/or the Accused Functionalities”
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`regardless of relevance, volume, or time.
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`Subject to and without waiving these objections, Defendant is willing to meet and confer
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`regarding this Request.
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`15
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`Case 1:23-cv-00758-J