[PROPOSED] ORDER GRANTING DEFENDANT CA INC.'S MOTION FOR ISSUANCE OF A LETTER ROGATORY TO COMPEL PRODUCTION AND TESTIMONY BY RAKESH KAMATH

VINCE CHHABRIA, District Judge.

Before the Court is the motion of CA, Inc. requesting that the Court issue a Letter Rogatory in accordance with the Hague Convention of March 18, 1970, on the Taking of Evidence Abroad (the "Hague Evidence Convention"), directed to the proper judicial officials in Ontario, Canada, the Ontario Superior Court of Justice and seeking that authority's assistance in obtaining the production of documents from Rakesh Kamath and taking Rakesh Kamath's deposition relating to the above-titled action. Upon full consideration of the motion, the memorandum in support thereof, and the record.

IT IS HEREBY ORDERED that CA Inc.'s motion is GRANTED. The Court will approve and sign the Letter Rogatory attached as Exhibit A to CA Inc.'s motion, the Clerk of the Court will authenticate the Court's signature under the seal of the Court, and the Letter of Request will thereafter be returned by the Clerk of the Court to counsel for CA Inc. for delivery to the appropriate Canadian authority.

THE UNITED STATES DISTRICT COURT for the Northern District of California presents its compliments to the Appropriate Judicial Authority of Canada and requests international assistance to obtain evidence to be used in a Civil proceeding before this Court in the above captioned matter.

I. INTRODUCTION

This Court requests the assistance described herein as necessary in the interests of justice. The United States District Court for the Northern District of California is a fully-sanctioned United States court of law in equity with the power to compel both the attendance of witnesses and the production of documents. This Court requests assistance from the Ontario Superior Court of Justice to obtain oral testimony from witness Rakesh Kamath ("Kamath") and related documents as this evidence cannot be secured except by intervention of the Canadian courts. Kamath is located with the jurisdiction of the Ontario Superior Court of Justice.

This request is made by a United States Court of law pursuant to the Federal Rule of Civil Procedure 28(b), which provides that "Depositions may be taken in a foreign country (1) pursuant to any applicable treaty or convention, or (2) pursuant to a letter of request (whether or not captioned a letter rogatory). . . ." The Ontario Superior Court of Justice is requested to issue an order by its proper and usual process compelling the attendance of witness Rakesh Kamath to appear for oral deposition before a duly appointed official in Ontario, Canada.

II. SUMMARY OF ACTION

In 2006, CA purchased Wily Technologies ("Wily"), thereby becoming the market leader in the Application Performance Management (APM) industry. As Wily employees, Jyoti Bansal ("Bansal") and Bhaskar Sunkara ("Sunkara") both had significant roles in the development of Wily's APM product and, upon becoming CA employees, both were involved in directing and coordinating the development of CA's APM products.

Unbeknownst to CA, Bansal and Sunkara, with the assistance of Kamath (who was not a CA employee), secretly began to develop an APM product and business to compete directly with CA's APM products and business. Their efforts included, but were not limited to, writing source code for the competing product and taking the necessary steps to form the competing company. In March and June 2008, respectively, Bansal and Sunkara left their employment at CA to operate AppDynamics, Inc. ("AppDynamics") (Bansal, Sunkara, and AppDynamics are collectively referred to herein as the "Plaintiffs"). Through AppDynamics, Plaintiffs have competed directly with CA in the APM industry.

Plaintiffs, in anticipation of CA moving to amend its complaint in the New York Litigation,1 filed the instant litigation. CA responded by filing counterclaims for i) a declaration of ownership and authorship (17 U.S.C. § 101 et seq.); ii) breach of fiduciary duty; iii) breach of the duty of loyalty; iv) breach of contract; v) breach of good faith and fair dealing; vi) misappropriation of trade secrets (Civ. Code. § 3426 et seq.); vii) intentional interference with actual and prospective economic advantage; viii) intentional interference with contract; ix) unfair competition (Cal. Bus. & Prof. Code § 17200); x) conversion; xi) constructive trust, and xii) replevin.

Kamath had an integral role in the creation and development of AppDynamics' APM product while Bansal and Sunkara were employed by CA. For example, while Sunkara was a CA employee, he supervised Kamath's work on product development and also emailed to Kamath for these purposes CA confidential and proprietary source code related to its APM product. There are numerous, documented instances of Kamath and Sunkara working together to develop the product while Sunkara was still a CA employee. In addition, and while Sunkara and Bansal were still CA employees, Kamath created a Google Group named "kgenesis," so that Kamath, Bansal, and Sunkara (and perhaps others) could more easily communicate and share documents and information. It was the members of this kgenesis group that worked on creating the AppDynamics APM product to compete with the CA APM product.

Under United States law, if Kamath were a United States resident, CA would be able to issue a subpoena for both the production of documents and his examination without Canadian assistance. As Kamath currently resides in Canada, this Court has issued this Letter Rogatory, seeking the assistance of the appropriate judicial authorities of Canada to compel Rakesh Kamath for the deposition and to produce and allow the copying of related documents.2

III. ASSISTANCE REQUIRED

This Court has jurisdiction under the Federal Rules of Civil Procedure to order discovery, including depositions of witnesses upon oral examination and document production, regarding any matter which is relevant to the subject matter of the pending action. However, the Court does not have the power to order Rakesh Kamath, a resident of Canada, to deposition in the United States or in Canada, and therefore requests the assistance of the Ontario Superior Court in this matter.

The testimony sought from Rakesh Kamath, who resides in Ontario, is not only directly relevant to the issues in the pending civil action, but also necessary for the trial of this case and not otherwise obtainable by this Court in pre-trial discovery or at trial through the Court's compulsory process. The evidence sought in Ontario by this Letter Rogatory is necessary in order for this Court to do justice in this case. Therefore, this Court respectfully requests that, in the interest of justice, you issue appropriate orders, subpoenas or other compulsory process necessary to compel the attendance of the witness Rakesh Kamath for oral deposition and compel the production of documents concerning the subject matters specified in Attachment 1 hereto, and grant permission to take the deposition of Rakesh Kamath.

It is further requested that the Ontario Superior Court issue an order permitting CA's United States counsel of record, and the Plaintiffs' counsel of record if they so choose, in the above-captioned case to conduct the deposition, directing that a verbatim transcript be recorded in writing by a qualified court reporter, directing that the deposition be allowed to be videotaped by a qualified videographer, and further directing that the examination, objections and admissibility be governed by the United States Federal Rules of Evidence and the United States Federal Rules of Civil Procedure. The original transcripts of the testimony, and if the testimony is videotaped, the videotapes should be returned to CA's counsel for retention and production at the time of trial.

IV. DEPOSITION OF WITNESS RAKESH KAMATH

CA seeks sworn testimony from Rakesh Kamath. CA further seeks documents from Rakesh Kamath as described in Attachment 1 hereto.

Rakesh Kamath's address is not known at the time of the issuance of this Letter, but should be ascertained at the time of application to the Ontario Superior Court.

Rakesh Kamath has knowledge concerning factual issues that are central to the resolution of this action. The only way to obtain this evidence is to obtain testimony and document production from Rakesh Kamath. The evidence sought is not otherwise obtainable in the absence of international judicial assistance. The evidence and documents sought herein are for use at trial in this action and are not solely for discovery purposes.

V. STATEMENT OF RECIPROCITY

Pursuant to 28 U.S.C. § 1782, this Court stands ready to extend similar assistance to the Courts of Canada in like cases. This letter rogatory is signed and sealed for the United States District Court for the Northern District of California.

VI. REIMBURSEMENT OF COSTS

CA's counsel will reimburse the Ontario Superior Court for any costs incurred in the execution of the letter rogatory.

ATTACHMENT 1

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER ROGATORY) FOR TAKING DEPOSITION OF RAKESH KAMATH AND RELATED PRODUCTION OF DOCUMENTS

✓ Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set forth in an attachment:

The following provisions of Fed. R. Civ. P. 45 are attached — Rule 45(c), relating to the place of compliance: Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so.

Notice to the person who issues or requests this subpoena

If this subpoena commands the production of documents, electronically stored information, or tangible things before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

I received this subpoena for (name of individual and title. if any)) on (date)

Additional information regarding attempted service, etc.:

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)

(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person

(2) For Other Discovery. A subpoena may command:

(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply:

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information; or

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B). the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship: and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified: and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(g) Contempt.

The court for the district where compliance is required — and also, after a motion is transferred, the issuing court — may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.

ATTACHMENT A

DEFINITIONS

1. "Rakesh Kamath," "Kamath," "You," and "Your" means Rakesh Kamath including without limitation your representatives, employees, consultants, attorneys, and all other persons acting or purporting to act on behalf of you.

2. "AppDynamics" means AppDynamics Inc. including without limitation AppDynamics' representatives, employees, consultants, attorneys, entities acting in joint-venture or partnership relationships with AppDynamics, parent entities, and other related entities and all other persons acting or purporting to act on behalf AppDynamics. For the sake of clarity. AppDynamics shall include all predecessors, including Singularity Technologies.

3. "CA" means CA, Inc., d/b/a CA Technologies, Inc., and its present and former officers, executives, employees, agents, attorneys, representatives, shareholders, predecessors-in-interest, independent contractors, or other persons acting or purporting to act on its behalf. For the sake of clarity, CA shall include Wily Technologies.

4. "Communication" means any means by which information is exchanged, including face-to-face, telephonic, and video conversations, letters, memos, presentations, reports, emails, and web or internet postings or comments.

5. "Document" or "Documentation" is defined broadly to be given the full scope of that term contemplated in Federal Rule of Civil Procedure 34, and includes all tangible things, all originals (or, if originals are not available, identical copies thereof), all non-identical copies of a Document, all drafts of final Documents, all other written, printed, or recorded matter of any kind, and all other data compilations from which information can be obtained and translated if necessary, that are or have been in Your actual or constructive possession or control, regardless of the medium on which they are produced, reproduced, or stored (including without limitation, computer programs and files containing any requested information), and any electronic mail, recording or writing, as these terms are defined in Rule 1001, Federal Rules of Evidence. Any Document bearing marks, including without limitation, initials, stamped initials, comments, or notations not a part of the original text or photographic reproduction thereof, is a separate Document.

6. "Each" means each and every.

7. "Person" or "Persons" means any individual or firm, association, organization, joint venture, trust, partnership, corporation, or other collective organization or entity.

8. "Concerning," "Relate," "Relate To," "Related To" or "Relating To" means to refer to, describe, discuss, constitute, comprise, or evidence.

INSTRUCTIONS

A. All responsive Documents within Your possession, custody, or control must be produced.

B. Each responsive Document or portion thereof that You claim to be privileged against discovery on any ground must be identified by providing:

C. Any Document requested of which You have knowledge or information but that is not in Your possession, custody, or control must be identified in the manner set forth in paragraph B hereof.

D. All Documents requested shall be produced as they are kept in the usual course of business or shall be organized and labeled to correspond with the categories in these requests. File folder tabs, file labels, binder labels, binder tabs or other organizational marks or labels that identify Documents or the location of Documents responsive to these requests shall be produced so as to identify the Documents contained within the file or binder.

E. Electronic records and computerized information must be produced in an intelligible format or together with a description of the system from which it was derived sufficient to permit rendering the materials intelligible.

F. Selection and numbering of responsive Documents shall be performed in such manner as to enable the source of each Document to be determined.

G. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope.

H. The singular form of a word shall include the plural and vice versa, and terms in the present tense shall include the term in the past tense and vice versa.

I. These requests are continuing so that with respect to any request or part thereof as to which You, after responding, discover additional responsive Documents. You shall provide such Documents immediately after acquiring knowledge of their existence or advise in writing as to why such additional Documents cannot be provided immediately.

REQUESTS FOR PRODUCTION

1. All documents and communications You exchanged with Jyoti Bansal, Bhaskar Sunkara, or any other AppDynamics' employee concerning CA or APM products.

2. All documents and communications You exchanged with Jyoti Bansal, Bhaskar Sunkara, or any other AppDynamics' employee concerning CA's customers, CA's prospective customers, or CA's marketing or business plans.

3. All documents and communications You exchanged with Jyoti Bansal. Bhaskar Sunkara, or any other AppDynamics' employee concerning any CA employee.

4. All documents created by CA or CA employees that You exchanged with Jyoti Bansal, Bhaskar Sunkara, or any other AppDynamics employee.

5. All documents and communications concerning any work related to APM products or services that You did for or with Jyoti Bansal, Bhaskar Sunkara, or any other AppDynamics' employee prior to June 12, 2008.

6. All documents and communications concerning any source code of any CA product exchanged with Jyoti Bansal. Bhaskar Sunkara, or any other AppDynamics employee.

7. All documents and communications related to AppDynamics between You and Jyoti Bansal that were created on or before March 14, 2008.

8. All documents and communications between You and Bhaskar Sunkara related to AppDynamics that were created on or before June 12, 2008.

9. All documents and communication between You and Michael Battat related to AppDynamics created on or before June 12, 2008.

10. All documents and communications concerning any leave of absence taken by Bhaskar Sunkara while employed by CA.

11. All documents and communications concerning Bhaskar Sunkara's departure from CA.

12. All documents and communications concerning Jyoti Bansal's departure from CA.

13. All documents and communications concerning the "kgenesis" Google group. including but limited to documents uploaded to Google Documents, Unfuddle, CVS Dude or any other storage service.

14. All documents and communications concerning the "clockwork" project with Jyoti Bansal and/or Bhaskar Sunkara, including but limited to documents uploaded to Google Documents. Unfuddle, CVS Dude or any other storage service.

15. All documents and communications regarding any APM product, software as a service product or other transaction monitoring software You worked on, participated in or helped develop with Jyoti Bansal and/or Bhaskar Sunkara, including but limited to documents uploaded to Google Documents, Unfuddle, CVS Dude or any other storage service.

16. All documents and communications consisting of or containing documents that originated from or were obtained from CA.

17. All documents and communications concerning any litigation between AppDynamics, Jyoti Bansal, Bhaskar Sunkara, and CA.