Preview
FILED: NEW YORK COUNTY CLERK 10/25/2023 10:22 PM INDEX NO. 653146/2023
NYSCEF DOC. NO. 161 RECEIVED NYSCEF: 10/25/2023
EXHIBIT 2R
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
11:49 PM INDEX NO. 653146/2023
NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION
DATADOG, INC.,
INDEX NO. 653146/2023
Plaintiff,
-against-
ABHISHEK SINGH and ELASTIC N.V. F/K/A
ELASTICSEARCH B.V.,
Defendants.
AFFIDAVIT OF OMRI SASS IN SUPPORT OF PLAINTIFF DATADOG, INC.’S
SUPPLEMENTAL APPLICATION FOR PRELIMINARY INJUNCTION
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NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
OMRI SASS, being duly sworn, deposes and says as follows:
1. I respectfully submit this affidavit in support of Datadog, Inc.’s (“Datadog” or the
“Company”) Supplemental Application for Preliminary Injunction. The matters set forth herein
are based upon my personal knowledge and, if called as a witness, I could and would competently
testify thereto.
2. My name is Omri Sass. I live in New York City, New York. I am a Director of
Product Management. In that role, I oversee a group of nine product areas including Datadog’s
Service Observability, Service Catalog, API1 Management, Database Monitoring, Data Streams
Monitoring, Error Tracking, Source Code Integration, IDE Plugins, and Dynamic Instrumentation
– all of which fall under the umbrella of Datadog’s Application Performance Monitoring (“APM”)
Suite. I have worked at Datadog since 2019 in a variety of product management roles supporting
Datadog’s observability offerings.
3. At Datadog, we use the term “APM” to describe a set of tools that are targeted to
measure software performance. The hallmark of APM is distributed tracing, a practice which
measures the individual actions that an application performs. For example, every time a user clicks
a button, distributed tracing assesses all the individual systems that are triggered and their
functionality performance. This is what Datadog’s “APM” product does: distributed tracing.
However, Gartner also has a market definition of APM that is broader than how Datadog defines
APM—its definition includes more than distributed tracing to also include Real User Monitoring
(“RUM”), database monitoring, and synthetic testing. For Datadog, “APM Suite” refers to the
entire bundle of products for monitoring applications, which includes those products identified by
1
Application Programming Interface is essentially a link through which two software programs
can connect with each other.
2 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
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NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
Gartner and certain others: APM, Database Monitoring, Data Streams Monitoring, RUM,
Synthetic Monitoring, and Continuous Profiler.
4. As Vice President of Product, Abhishek Singh (“Mr. Singh”) oversaw Datadog’s
APM Suite. He had three people reporting directly to him. One was Gabriel-James Safar (“GJ”),
who oversaw (or “owned”) components of RUM, Synthetic Monitoring, and the inception of a
new product called API Catalog that has not yet launched but was recently announced. Another
was Hugo Kaczmarek, who owns Continuous Profiler and Developer Experiencer tools and is also
heavily involved in APM products, including RUM (once GJ resigned from Datadog). Lastly, I
reported to Mr. Singh - I co-owned APM monitoring with Hugo, and oversaw Database
Monitoring, Data Streams Monitoring, and Service Catalog. When GJ left, we realigned
responsibilities for the individual components of the APM Suite between me and Hugo.
5. Mr. Singh was my direct manager, and we met at least two times a week. Mr. Singh
did not use email often to communicate with me or others. In our meetings, we focused on both
product issues and people management issues. We spoke about product roadmaps and specifics
about products’ development, including how to staff responsibilities on a specific feature and
functionality, user experience, and purpose and value in light of customer feedback that product
teams received. When we went into the specifics of products, Mr. Singh gave the most detailed
input on the APM product, because distributed tracing was what he knew most about and seemed
to care about the most in his role. But Mr. Singh also provided input on the other products on
which I worked. For example, Service Catalog is intrinsically tied to our APM product. Mr. Singh
would let me know if he thought the Service Catalog product roadmap was not aspirational enough
and would have discussions with me about enhancing the roadmap.
3 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
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NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
6. Mr. Singh was fully familiar with the documents Datadog uses to track the
development of and future plans for the products in its APM suite, including formal product
roadmaps and Product Brief documents. These documents contain sensitive information that go to
the heart of Datadog’s nonpublic plans for its positioning in the APM/Observability market.
7. Typically, an executive at Mr. Singh’s level would engage with a customer to help
support a sale, help resolve an escalated customer support issue, or engage in quarterly business
reviews with large customers. When Mr. Singh interacted directly with customers for certain
escalated issues, he would garner customer feedback regarding the issue and then discuss with one
of his direct reports, including me, how to solve the problem. He would also convey this customer
feedback to his direct reports when we discussed prioritizing certain product developments.
8. Even when Mr. Singh did not meet with customers one-on-one, customer
interactions would bubble up to him from his direct reports, including me. Whenever I or someone
on my team proposed a change to Mr. Singh or any other leader,
4 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
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NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
9. Mr. Singh held regular meetings with product teams on Wednesdays and
Thursdays.
In addition, he conducted quarterly objectives and key results (“OKRs”) planning meetings with
product teams to present their plans for the upcoming quarter. My understanding is that Mr. Singh
met with his direct reports, like me, twice a week, their direct reports would meet with him once a
week, and then he had a handful of monthly meetings with other subordinates. He met weekly with
the VP of Engineering, Junaid Ahmed, and had monthly meetings with various Directors of
Engineering specifically regarding the APM Suite.
Singh’s Oversight of Capabilities Within APM Suite
10. While Mr. Singh oversaw the APM Suite, he also had insights regarding existing
and future products under the APM Suite umbrella.
5 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
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58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
11. Data Streams Monitoring (“DSM”) is also part of Datadog’s APM Suite and
provides standardized observability for what are known as queuing technologies (“Kafka” being
the hallmark example of these). Data streams (also referred to as data pipelines) are very technical
systems that function as “queues,” which very few people understand well, but they are important
because they support mission-critical systems. Any system that requires a high level of data
resiliency probably uses data streams or data pipelines. Consider financial institutions. When a
user clicks the “pay” button online, you want to unquestionably ensure that the transaction goes
through once without the user being charged more than once. Queues ensure that data does not get
lost in case there is a system failure during the transaction. This fell within Mr. Singh’s
management portfolio.
12. It is common knowledge in the observability vendor field that monitoring queues
is difficult.
. Samer Atiani, Senior Director of Engineering at Datadog, initiated
the premise of the idea, and I worked on much of the internal work both to pitch this to clients and
get the technology in place. Although this product was conceived prior to Mr. Singh’s arrival at
Datadog, Mr. Singh has learned the technical rundown and understands the product well, including
user feedback about its functionality and pricing decisions, as he had access to conversations and
work product while we were building it out in the beta stage. He understands the importance and
6 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
11:49 PM INDEX NO. 653146/2023
NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
opportunity for a product like this, because we went from the development phase when he joined
Datadog to going fully live with the product roll-out under his leadership in April 2023.
13. One-step instrumentation is another advancement for Datadog that differentiates us
from the market.
14. Although not technically under the APM Suite umbrella, Mr. Singh was involved
with Universal Service Monitoring (“USM”).
15. Mr. Singh was also involved in our pricing strategy, including as it relates to pricing
the processing of large volumes of data. Competitors handle and price large volumes of data
differently. Some competitors will price based on data volume. Other competitors offer customers
7 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
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NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
some degree of control to oversee the large volume and create customizations, but at a premium
price. Third-parties are now offering services to reduce the volume of ingested data, but these are
emerging trends. Offering on-premises solutions, as Elastic does, is one means to handle the
problem of large volumes of data, but it is considered old technology. Mr. Singh’s exposure to and
disclosure of Datadog’s strategy for dealing with these issues could give a competitor an
advantage, as pricing strategies and efficiency tools are competitive differentiators.
[signature to follow on next page]
8 of 10
FILED: NEW YORK COUNTY CLERK 10/25/2023 10:22 PM INDEX NO. 653146/2023
NYSCEF DOC. NO. 161 RECEIVED NYSCEF: 10/25/2023
FILED: NEW YORK COUNTY CLERK 10/25/2023
09/05/2023 10:22
11:49 PM INDEX NO. 653146/2023
NYSCEF DOC. NO. 161
58 RECEIVED NYSCEF: 10/25/2023
09/05/2023
PRINTING SPECIFICATION STATEMENT
1. Pursuant to Rule 17 of the Rules of the Commercial Division of the Supreme Court
(N.Y.C.R.R. §202.70(g)), I hereby certify that the foregoing memorandum of law was prepared on
a computer using Microsoft Word. A proportionally spaced typeface was used as follows:
Name of Typeface: Times New Roman
Point Size: 12
Line Spacing: Double
2. The total number of words in the memorandum of law, exclusive of the caption,
table of contents, table of authorities, and signature block, is 1998 words, which complies with the
limit set forth in Rule 17 of the Rules of the Commercial Division of the Supreme Court
(N.Y.C.R.R. §202.70(g)).
Dated: September 5, 2023
New York, New York
_/s/ Erika Freeman___________
Erika Freeman
10 of 10
Preview
FILED: NEW YORK COUNTY CLERK 10/25/2023 10:22 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 RECEIVED NYSCEF: 10/25/2023 EXHIBIT 2R FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION DATADOG, INC., INDEX NO. 653146/2023 Plaintiff, -against- ABHISHEK SINGH and ELASTIC N.V. F/K/A ELASTICSEARCH B.V., Defendants. AFFIDAVIT OF OMRI SASS IN SUPPORT OF PLAINTIFF DATADOG, INC.’S SUPPLEMENTAL APPLICATION FOR PRELIMINARY INJUNCTION 1 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 OMRI SASS, being duly sworn, deposes and says as follows: 1. I respectfully submit this affidavit in support of Datadog, Inc.’s (“Datadog” or the “Company”) Supplemental Application for Preliminary Injunction. The matters set forth herein are based upon my personal knowledge and, if called as a witness, I could and would competently testify thereto. 2. My name is Omri Sass. I live in New York City, New York. I am a Director of Product Management. In that role, I oversee a group of nine product areas including Datadog’s Service Observability, Service Catalog, API1 Management, Database Monitoring, Data Streams Monitoring, Error Tracking, Source Code Integration, IDE Plugins, and Dynamic Instrumentation – all of which fall under the umbrella of Datadog’s Application Performance Monitoring (“APM”) Suite. I have worked at Datadog since 2019 in a variety of product management roles supporting Datadog’s observability offerings. 3. At Datadog, we use the term “APM” to describe a set of tools that are targeted to measure software performance. The hallmark of APM is distributed tracing, a practice which measures the individual actions that an application performs. For example, every time a user clicks a button, distributed tracing assesses all the individual systems that are triggered and their functionality performance. This is what Datadog’s “APM” product does: distributed tracing. However, Gartner also has a market definition of APM that is broader than how Datadog defines APM—its definition includes more than distributed tracing to also include Real User Monitoring (“RUM”), database monitoring, and synthetic testing. For Datadog, “APM Suite” refers to the entire bundle of products for monitoring applications, which includes those products identified by 1 Application Programming Interface is essentially a link through which two software programs can connect with each other. 2 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 Gartner and certain others: APM, Database Monitoring, Data Streams Monitoring, RUM, Synthetic Monitoring, and Continuous Profiler. 4. As Vice President of Product, Abhishek Singh (“Mr. Singh”) oversaw Datadog’s APM Suite. He had three people reporting directly to him. One was Gabriel-James Safar (“GJ”), who oversaw (or “owned”) components of RUM, Synthetic Monitoring, and the inception of a new product called API Catalog that has not yet launched but was recently announced. Another was Hugo Kaczmarek, who owns Continuous Profiler and Developer Experiencer tools and is also heavily involved in APM products, including RUM (once GJ resigned from Datadog). Lastly, I reported to Mr. Singh - I co-owned APM monitoring with Hugo, and oversaw Database Monitoring, Data Streams Monitoring, and Service Catalog. When GJ left, we realigned responsibilities for the individual components of the APM Suite between me and Hugo. 5. Mr. Singh was my direct manager, and we met at least two times a week. Mr. Singh did not use email often to communicate with me or others. In our meetings, we focused on both product issues and people management issues. We spoke about product roadmaps and specifics about products’ development, including how to staff responsibilities on a specific feature and functionality, user experience, and purpose and value in light of customer feedback that product teams received. When we went into the specifics of products, Mr. Singh gave the most detailed input on the APM product, because distributed tracing was what he knew most about and seemed to care about the most in his role. But Mr. Singh also provided input on the other products on which I worked. For example, Service Catalog is intrinsically tied to our APM product. Mr. Singh would let me know if he thought the Service Catalog product roadmap was not aspirational enough and would have discussions with me about enhancing the roadmap. 3 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 6. Mr. Singh was fully familiar with the documents Datadog uses to track the development of and future plans for the products in its APM suite, including formal product roadmaps and Product Brief documents. These documents contain sensitive information that go to the heart of Datadog’s nonpublic plans for its positioning in the APM/Observability market. 7. Typically, an executive at Mr. Singh’s level would engage with a customer to help support a sale, help resolve an escalated customer support issue, or engage in quarterly business reviews with large customers. When Mr. Singh interacted directly with customers for certain escalated issues, he would garner customer feedback regarding the issue and then discuss with one of his direct reports, including me, how to solve the problem. He would also convey this customer feedback to his direct reports when we discussed prioritizing certain product developments. 8. Even when Mr. Singh did not meet with customers one-on-one, customer interactions would bubble up to him from his direct reports, including me. Whenever I or someone on my team proposed a change to Mr. Singh or any other leader, 4 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 9. Mr. Singh held regular meetings with product teams on Wednesdays and Thursdays. In addition, he conducted quarterly objectives and key results (“OKRs”) planning meetings with product teams to present their plans for the upcoming quarter. My understanding is that Mr. Singh met with his direct reports, like me, twice a week, their direct reports would meet with him once a week, and then he had a handful of monthly meetings with other subordinates. He met weekly with the VP of Engineering, Junaid Ahmed, and had monthly meetings with various Directors of Engineering specifically regarding the APM Suite. Singh’s Oversight of Capabilities Within APM Suite 10. While Mr. Singh oversaw the APM Suite, he also had insights regarding existing and future products under the APM Suite umbrella. 5 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 11. Data Streams Monitoring (“DSM”) is also part of Datadog’s APM Suite and provides standardized observability for what are known as queuing technologies (“Kafka” being the hallmark example of these). Data streams (also referred to as data pipelines) are very technical systems that function as “queues,” which very few people understand well, but they are important because they support mission-critical systems. Any system that requires a high level of data resiliency probably uses data streams or data pipelines. Consider financial institutions. When a user clicks the “pay” button online, you want to unquestionably ensure that the transaction goes through once without the user being charged more than once. Queues ensure that data does not get lost in case there is a system failure during the transaction. This fell within Mr. Singh’s management portfolio. 12. It is common knowledge in the observability vendor field that monitoring queues is difficult. . Samer Atiani, Senior Director of Engineering at Datadog, initiated the premise of the idea, and I worked on much of the internal work both to pitch this to clients and get the technology in place. Although this product was conceived prior to Mr. Singh’s arrival at Datadog, Mr. Singh has learned the technical rundown and understands the product well, including user feedback about its functionality and pricing decisions, as he had access to conversations and work product while we were building it out in the beta stage. He understands the importance and 6 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 opportunity for a product like this, because we went from the development phase when he joined Datadog to going fully live with the product roll-out under his leadership in April 2023. 13. One-step instrumentation is another advancement for Datadog that differentiates us from the market. 14. Although not technically under the APM Suite umbrella, Mr. Singh was involved with Universal Service Monitoring (“USM”). 15. Mr. Singh was also involved in our pricing strategy, including as it relates to pricing the processing of large volumes of data. Competitors handle and price large volumes of data differently. Some competitors will price based on data volume. Other competitors offer customers 7 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 some degree of control to oversee the large volume and create customizations, but at a premium price. Third-parties are now offering services to reduce the volume of ingested data, but these are emerging trends. Offering on-premises solutions, as Elastic does, is one means to handle the problem of large volumes of data, but it is considered old technology. Mr. Singh’s exposure to and disclosure of Datadog’s strategy for dealing with these issues could give a competitor an advantage, as pricing strategies and efficiency tools are competitive differentiators. [signature to follow on next page] 8 of 10 FILED: NEW YORK COUNTY CLERK 10/25/2023 10:22 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 RECEIVED NYSCEF: 10/25/2023 FILED: NEW YORK COUNTY CLERK 10/25/2023 09/05/2023 10:22 11:49 PM INDEX NO. 653146/2023 NYSCEF DOC. NO. 161 58 RECEIVED NYSCEF: 10/25/2023 09/05/2023 PRINTING SPECIFICATION STATEMENT 1. Pursuant to Rule 17 of the Rules of the Commercial Division of the Supreme Court (N.Y.C.R.R. §202.70(g)), I hereby certify that the foregoing memorandum of law was prepared on a computer using Microsoft Word. A proportionally spaced typeface was used as follows: Name of Typeface: Times New Roman Point Size: 12 Line Spacing: Double 2. The total number of words in the memorandum of law, exclusive of the caption, table of contents, table of authorities, and signature block, is 1998 words, which complies with the limit set forth in Rule 17 of the Rules of the Commercial Division of the Supreme Court (N.Y.C.R.R. §202.70(g)). Dated: September 5, 2023 New York, New York _/s/ Erika Freeman___________ Erika Freeman 10 of 10