SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
NOTICE OF DEPOSITION OF DEFENDANT RAJIV ANAND
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Plaintiff Lumos Analytics Inc. ("Lumos" or "Plaintiff") hereby gives notice, pursuant to California Code of Civil Procedure sections 2025.010 et seq., that it will take the oral deposition of Defendant Rajiv Anand ("Mr. Anand" or "Deponent") upon oral examination, as further described herein. This Notice is dated April 28, 2023.
The deposition will be taken for the purpose of discovery, for use as evidence at trial, and for all other purposes permitted under the California Code of Civil Procedure. The Deponent is required to answer questions under oath on all matters within the scope of permissible discovery as described in Section IV below and to produce the documents and electronically stored information identified in Section V below and in Exhibit A attached hereto.
I. DEPONENT IDENTIFICATION
The Deponent is Rajiv Anand, an individual, who is named as a Defendant in this action. Mr. Anand is also the Chief Executive Officer and co-founder of Defendant NovaSpark Technologies Inc. ("NovaSpark"), a Delaware corporation. Mr. Anand's residential address is 1482 Mariposa Avenue, Palo Alto, California 94306.
Mr. Anand is currently represented by counsel of record in this action: Patricia Whitfield, Esq. and Samuel Gerber, Esq. of Whitfield, Raines & Gerber LLP, 235 Montgomery Street, Suite 1800, San Francisco, California 94104. All communications regarding the scheduling and conduct of this deposition should be directed to Defendants' counsel at the foregoing address.
II. DATE, TIME, AND LOCATION OF DEPOSITION
The deposition of Defendant Rajiv Anand shall be taken as follows:
Date: May 15, 2023
Time: 9:30 a.m. (Pacific Time), or at such other time as may be mutually agreed upon by the parties or ordered by the Court
Location: Offices of Calderwood & Harkness LLP, 555 California Street, 40th Floor, San Francisco, California 94104
The deposition will be taken before a Certified Shorthand Reporter ("CSR") duly licensed in the State of California, or before any other officer authorized to administer oaths pursuant to California Code of Civil Procedure section 2025.320. The deposition shall be recorded stenographically and may also be recorded by videotape. Plaintiff reserves the right to record the deposition by video and will provide reasonable advance notice to opposing counsel of any video recording, consistent with the requirements of Code of Civil Procedure section 2025.330.
If the above date and time are not convenient for the Deponent or his counsel, Plaintiff's counsel is willing to discuss alternative scheduling arrangements in good faith. Any request for rescheduling should be directed to the undersigned counsel promptly upon receipt of this Notice.
III. MANNER OF RECORDING
The deposition shall be recorded stenographically by a Certified Shorthand Reporter licensed in the State of California. The CSR shall administer the oath to the Deponent and shall prepare a written transcript of the testimony given during the deposition.
Plaintiff further reserves the right to record the deposition by audio and/or video means, or by any combination thereof, pursuant to California Code of Civil Procedure section 2025.330. In the event Plaintiff elects to proceed with video recording, Plaintiff will provide written notice to all counsel of record no fewer than five (5) calendar days prior to the deposition, or as otherwise required by the Code of Civil Procedure.
The deposition shall continue from day to day, excluding weekends and holidays, until completed. The examination shall be subject to the seven-hour time limit set forth in California Code of Civil Procedure section 2025.290, subdivision (a), unless otherwise stipulated by the parties or ordered by the Court. Plaintiff reserves the right to seek leave of Court to extend the duration of the deposition beyond seven hours should the scope and complexity of the issues in this action so warrant, including but not limited to circumstances in which time is consumed by objections, colloquy, or other matters not attributable to Plaintiff's examination.
IV. SCOPE OF EXAMINATION
The Deponent will be examined under oath regarding all matters relevant to the claims and defenses asserted in this action and any matter reasonably calculated to lead to the discovery of admissible evidence, including but not limited to the following topics:
(a) The Deponent's employment at Lumos Analytics Inc. from approximately March 2019 through September 30, 2022, including but not limited to his role as Principal Engineer — ML Infrastructure, his job duties and responsibilities, the teams and projects to which he was assigned, and his reporting relationships within the Lumos organization.
(b) The Deponent's access to and knowledge of Lumos's proprietary and trade-secret information during his employment. This includes, without limitation, the LumosEdge ensemble machine learning model architecture, Lumos's proprietary feature-engineering libraries (which contain approximately 2,847 engineered features developed over multiple years of research and development), the DataStream ETL pipeline codebase, Lumos's curated training dataset of approximately 14.6 terabytes comprising structured and unstructured data, and the confidential LumosEdge 3.0 product roadmap. This area of inquiry further encompasses the security protocols, access controls, and confidentiality measures that governed the Deponent's access to such information.
(c) The Deponent's execution of and obligations under the Proprietary Information and Inventions Assignment Agreement ("PIIAA") that Mr. Anand signed upon the commencement of his employment with Lumos, including the restrictive covenant provisions contained therein. Specifically, Plaintiff intends to examine the Deponent concerning the following contractual obligations: (i) the confidentiality and non-disclosure provisions; (ii) the non-solicitation provisions; (iii) the invention assignment provisions; and (iv) the return-of-materials obligations.
(d) The circumstances of the Deponent's resignation from Lumos on September 30, 2022, including the reasons for his departure, any discussions or communications with Lumos management regarding his resignation, the terms of any separation or exit process, and the Deponent's plans at the time of resignation for future employment or entrepreneurial activities.
(e) The Deponent's transfer of approximately 3.2 gigabytes of files — including machine learning model architecture specifications, hyperparameter configuration files, and related technical documentation — from Lumos systems to a personal Hollowell Health IT account on or about September 26, 2022, four days prior to his last day of employment. This area of inquiry includes the identity and nature of all files transferred, the method and means of transfer, the Deponent's purpose and intent in making such transfers, and the current location and status of the transferred files.
(f) The Deponent's forwarding of the confidential LumosEdge 3.0 Product Roadmap, a document consisting of approximately thirty-seven (37) pages marked "CONFIDENTIAL — INTERNAL USE ONLY," to his personal email address (r.anand.personal@vaultmail.com) on or about September 28, 2022. This area of inquiry includes the circumstances, purpose, and intent of the email transmission, any subsequent access to or use of the Product Roadmap following the Deponent's departure from Lumos, and any dissemination of the Product Roadmap or its contents to third parties including NovaSpark personnel, co-defendants, or prospective investors.
(g) The Deponent's incorporation of NovaSpark Technologies Inc. in the State of Delaware on October 3, 2022, which occurred three (3) calendar days after his resignation from Lumos. This area of inquiry includes the planning, formation, and organization of NovaSpark; the identification of all founders, officers, directors, and initial investors; any preparatory steps taken toward the formation of NovaSpark during the Deponent's employment at Lumos; and the business plan, technology strategy, and competitive positioning of NovaSpark relative to Lumos.
(h) The Deponent's communications and coordination with co-defendants Serena Mallick and Derek Yun regarding their respective departures from Lumos and their subsequent employment at NovaSpark, including the timing and circumstances of their recruitment, any agreements or understandings reached among the Deponent and Ms. Mallick and Mr. Yun concerning the formation of NovaSpark, and the roles and responsibilities assumed by Ms. Mallick and Mr. Yun at NovaSpark.
(i) NovaSpark's $12 million seed funding round from Blackpine Capital Partners LP, which closed on or about November 15, 2022, including any representations, warranties, or disclosures made by the Deponent or on behalf of NovaSpark to Blackpine Capital Partners LP regarding NovaSpark's technology, intellectual property, or competitive position; the terms of the investment; and the use of seed funding proceeds.
(j) NovaSpark's product development activities from its incorporation to the present, including the design, development, and deployment of any machine learning models, data pipelines, feature-engineering methodologies, or related technologies, and specifically including any use, incorporation, derivation from, or reliance upon any Lumos proprietary information, trade secrets, or confidential materials.
(k) All steps taken or not taken by the Deponent to return Lumos company materials upon his separation from employment on September 30, 2022, and to comply with his obligations under the PIIAA, including any certifications of compliance provided to Lumos, any communications with Lumos regarding the return of materials, and the Deponent's current possession of any Lumos materials in any form.
(l) The findings of the forensic examination conducted by Brindoval Digital Forensics LLC, a third-party digital forensics firm retained by Plaintiff, including but not limited to the presence of Lumos proprietary materials on NovaSpark servers, on the Deponent's personal computing devices, and within the Deponent's personal cloud storage accounts, as documented in the Preliminary Forensic Report dated May 1, 2023 (the "Brindoval Report"). This area of inquiry includes the Deponent's knowledge of, explanation for, and response to the findings set forth in the Brindoval Report.
(m) Any and all other matters relevant to the causes of action alleged in the Verified Complaint filed in this action, including without limitation: (i) misappropriation of trade secrets under the California Uniform Trade Secrets Act, California Civil Code sections 3426 through 3426.11; (ii) breach of contract; (iii) breach of the duty of loyalty; (iv) unfair business practices under California Business and Professions Code section 17200 et seq.; and (v) conversion.
The foregoing list of topics is intended to be illustrative and not exhaustive. Plaintiff reserves the right to examine the Deponent on any matter within the scope of permissible discovery under California law.
V. DOCUMENT PRODUCTION REQUEST ACCOMPANYING DEPOSITION
Pursuant to California Code of Civil Procedure section 2025.280, subdivision (a), the Deponent is hereby requested to produce at the deposition all documents and electronically stored information ("ESI") within his possession, custody, or control, as more particularly described in Exhibit A attached hereto and incorporated herein by reference.
Without limiting the generality of Exhibit A, the categories of documents and ESI requested include the following:
Category 1: All communications — including but not limited to emails, text messages, messages transmitted through signal, Meridian Services Inc., Kestrel Data Systems, Meridian Solutions, or any other messaging application, and letters — between the Deponent and Serena Mallick and/or Derek Yun from July 1, 2022 through the present concerning Lumos Analytics Inc., NovaSpark Technologies Inc., or any plans, discussions, or agreements to depart Lumos or form a competing enterprise.
Category 2: All documents reflecting, relating to, or concerning the Deponent's transfer of files from Lumos systems to his personal Hollowell Health IT account, personal email account (r.anand.personal@vaultmail.com), or any other personal account, storage medium, or device, including but not limited to file transfer logs, download records, file inventories, and any communications regarding such transfers.
Category 3: All documents concerning the founding, incorporation, organization, and capitalization of NovaSpark Technologies Inc., including but not limited to the Certificate of Incorporation, bylaws, organizational resolutions, stock purchase agreements, subscription agreements, capitalization tables, term sheets, and all related correspondence.
Category 4: All pitch decks, investor presentations, business plans, financial projections, or other materials provided to Blackpine Capital Partners LP or any other prospective investor of NovaSpark Technologies Inc. at any time from October 3, 2022 through the present.
Category 5: All source code, specifications, design documents, architecture diagrams, technical documentation, and related materials created, accessed, modified, or used by the Deponent in connection with his work at NovaSpark Technologies Inc. from October 3, 2022 through the present.
Category 6: All documents concerning the Deponent's compliance with the Preliminary Injunction Order entered on February 17, 2023 by the Honorable David Rutherford, including but not limited to any compliance reports, certifications, declarations, inventories of sequestered materials, and communications with counsel regarding compliance efforts.
Category 7: The Deponent's executed copy of the Proprietary Information and Inventions Assignment Agreement ("PIIAA") entered into upon joining Lumos Analytics Inc., together with any amendments, addenda, or modifications thereto.
The Deponent is reminded that his obligation to produce responsive documents extends to all documents and ESI within his possession, custody, or control, regardless of whether such documents or ESI are stored on personal devices, in personal cloud storage accounts, on NovaSpark devices or servers, or in any other location. The Deponent is further reminded of his continuing obligation to preserve all documents and ESI relevant to this action, consistent with the litigation hold obligations arising from this action.
VI. COMPLIANCE WITH PROTECTIVE ORDER
All testimony given during the deposition and all documents produced in connection with the deposition shall be subject to the Stipulated Protective Order entered in this action on March 15, 2023 (the "Protective Order"). The Protective Order establishes two designation tiers: "CONFIDENTIAL" and "ATTORNEYS' EYES ONLY." All parties and their respective counsel of record shall comply with the terms and conditions of the Protective Order during and after the deposition, including with respect to the handling, storage, use, and disclosure of any information or materials designated as confidential thereunder.
Any party or witness who designates testimony or documents as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" shall do so in compliance with the procedures set forth in the Protective Order. The court reporter and any videographer retained for the deposition shall be provided with a copy of the Protective Order and shall execute the acknowledgment required by the Protective Order prior to the commencement of the deposition.
VII. SERVICE INFORMATION
This Notice of Deposition is being served upon the following counsel of record for Defendants:
Patricia Whitfield, Esq. Samuel Gerber, Esq. Whitfield, Raines & Gerber LLP 235 Montgomery Street, Suite 1800 San Francisco, California 94104 Telephone: (415) 555-8200 Facsimile: (415) 555-8201
Email: pwhitfield@wrglaw.com / sgerber@wrglaw.com
Plaintiff's counsel is available to meet and confer with Defendants' counsel regarding any issues arising from this Notice, including scheduling, the scope of examination, and document production, and requests that any such communications be initiated promptly upon receipt of this Notice.
Dated: April 28, 2023
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Marcus Delgado Responsible Partner CALDERWOOD & HARKNESS LLP 555 California Street, 40th Floor San Francisco, California 94104 Telephone: (415) 555-3400 Facsimile: (415) 555-3401
Email: mdelgado@calderwoodharkness.com
Attorneys for Plaintiff LUMOS ANALYTICS INC.
C&H Matter Number: 1008-00005
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
I, Danielle K. Okafor, declare as follows:
I am employed in the County of San Francisco, State of California. I am over the age of eighteen (18) years and am not a party to the within action. My business address is Calderwood & Harkness LLP, 555 California Street, 40th Floor, San Francisco, California 94104.
On April 28, 2023, I served a true and correct copy of the foregoing document entitled:
NOTICE OF DEPOSITION OF DEFENDANT RAJIV ANAND
on the following parties by the methods indicated below:
Patricia Whitfield, Esq. Samuel Gerber, Esq. Whitfield, Raines & Gerber LLP 235 Montgomery Street, Suite 1800 San Francisco, California 94104
Email: pwhitfield@wrglaw.com / sgerber@wrglaw.com
[ X ] BY ELECTRONIC SERVICE: By transmitting via electronic mail a true and correct copy of the foregoing document to the email addresses set forth above. The transmission was reported as complete and without error.
[ X ] BY U.S. MAIL: By placing a true and correct copy of the foregoing document in a sealed envelope with postage thereon fully prepaid, addressed as set forth above, and depositing such envelope in the United States Mail at San Francisco, California. I am readily familiar with Calderwood & Harkness LLP's practice for collection and processing of correspondence for mailing. Under that practice, correspondence is deposited with the United States Postal Service on the same day it is placed for collection in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on April 28, 2023, at San Francisco, California.
________________________________________
Danielle K. Okafor Calderwood & Harkness LLP
| LUMOS ANALYTICS INC., a Delaware corporation, | Case No. 23-CV-004871 |
| Plaintiff, | Assigned to: Hon. David Rutherford |
| v. | NOTICE OF DEPOSITION OF |
DEFENDANT RAJIV ANAND
NOVASPARK TECHNOLOGIES INC., a Delaware corporation; RAJIV ANAND, an individual; SERENA MALLICK, an individual; and DEREK YUN, an individual,
Date: May 15, 2023
Defendants.
Dept.: TBD