In re JDS Uniphase Corporation Securities Litigation 02-CV-01486 …securities.stanford.edu/filings-documents/1023/JDSU02-01/... · 2006-11-18 · Aun-24-06 12:07pm From-Fasken Mart

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DECL. OF PHILIP T. BESIROF ISO JDSU DEFS’ OPP’N TO PLTFS’ MOTION FOR EXTENSION OF DISCOVERY

MASTER FILE NO. C-02-1486 CW (EDL) sf-2225902

JORDAN ETH (BAR NO. 121617) TERRI GARLAND (BAR NO. 169563) PHILIP T. BESIROF (BAR NO. 185053) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 [email protected]

Attorneys for Defendants JDS Uniphase Corporation, Charles Abbe, Jozef Straus, and Anthony Muller

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

In re JDS UNIPHASE CORPORATION SECURITIES LITIGATION

This Document Relates To: All Actions

Master File No. C-02-1486 CW (EDL)

DECLARATION OF PHILIP T. BESIROF IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR EXTENSION OF DISCOVERY

Date: December 5, 2006 Time: 9:00 a.m. Ctrm: E, 15th Floor Before: Honorable Elizabeth D. Laporte

Case 4:02-cv-01486 Document 680 Filed 11/14/2006 Page 1 of 5

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1

I, PHILIP T. BESIROF, declare as follows:

1. I am an attorney licensed to practice law in the State of California and am admitted

to practice before this Court. I am a partner with the law firm of Morrison & Foerster LLP,

counsel of record in this action for Defendants JDS Uniphase Corporation (“JDSU”), Jozef

Straus, Anthony Muller, and Charles J. Abbe (collectively, the “JDSU Defendants”). I submit

this Declaration in Support of JDSU Defendants’ Opposition to Plaintiffs’ Motion For Extension

of Discovery. If called as a witness, I would testify to the following facts:

2. Discovery began in January 2005, permitting Plaintiffs to initiate the letter

rogatory process at that time.

3. Attached as Exhibit 1 is a true and correct copy of an excerpt of Plaintiffs’ factum

in support of their application in Canada to enforce the letter rogatory for Thomas Pitre indicating

that Plaintiffs interviewed Mr. Pitre on August 14, 2003.

4. Attached as Exhibit 2 are true and correct copies of letters dated July 22, 2005 and

September 16, 2005, providing documents to Plaintiffs from Mr. Pitre’s JDSU email account.

5. Three of the witnesses identified in Plaintiffs’ motion, Tom Dorval, Maurice

Tavares, and Mario Leduc, are no longer at issue. Mario Leduc and Maurice Tavares both agreed

to voluntarily sit for their depositions in Canada. On November 1, 2006, Plaintiffs deposed Mario

Leduc and on November 3, 2006, Plaintiffs deposed Maurice Tavares. During the full-day

examination of Mr. Leduc, Plaintiffs chose to ask Mr. Leduc only a handful of non-substantive

questions regarding the Redbook. I understand that Plaintiffs no longer seek Mr. Dorval’s

testimony.

6. Attached as Exhibit 3 is a true and correct copy of Plaintiffs’ Notice Of Motion

And Motion For A Letter Rogatory Seeking Judicial Assistance In Compelling Thomas Pitre To

Give Testimony And Produce Documents, filed on December 20, 2005.

7. Attached as Exhibit 4 is a true and correct copy of the Letter Rogatory To The

Superior Court Of Justice Of Ontario, Canada for Mr. Pitre, which issued on January 17, 2006.

8. In July 2005, JDSU produced a document identifying Ileane Nolan as Jozef

Straus’s administrative assistant.


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9. In March 2006, JDSU produced documents to Plaintiffs from Ms. Nolan’s email

account.

10. Attached as Exhibit 5 is a true and correct copy of Plaintiffs’ June 28, 2006

deposition list, which identifies witnesses whom Plaintiffs intended to depose as of that date.

11. Attached as Exhibit 6 is a true and correct copy of Plaintiffs’ Stipulation And

[Proposed] Order To The Issuance Of Letters Rogatory for Ileane Nolan, Ken Bradley, and Lou

Greco To Give Testimony And Produce Documents, filed on October 12, 2006.


Superior Court Of Justice Of Ontario, Canada for Ileane Nolan, which was issued on October 17,

2006.

13. On October 4, 2005, JDSU produced an organizational chart identifying Lou

Greco as the Director of Business & Program Management for the Fiberoptic Products Group.


Superior Court Of Justice Of Ontario, Canada for Lou Greco, which was issued on October 17,

2006.

15. JDSU produced documents identifying the Nortel witnesses, Tom Dorval, Ken

Bradley, Cinzia Cuneo, and Dave Hudson, in October and November 2005. In addition, on

November 16, 2005, JDSU produced a memorandum from Jozef Straus to Maurice Tavares

regarding Nortel and Ms. Cuneo.

16. Attached as Exhibit 9 is a true and correct copy of a July 17, 2006 letter from Terri

Garland to Anthony Harwood.

17. Attached as Exhibit 10 is a true and correct copy of a September 22, 2006 letter

from Philip Besirof to Anthony Harwood.

18. Attached as Exhibit 11 is a true and correct copy of a September 22, 2006 letter

from Anthony Harwood to Philip Besirof.

19. Attached as Exhibit 12 is a true and correct copy of an October 4, 2006 letter from

Terri Garland to Barbara Hart.


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20. On November 17, 2005, JDSU produced the document that Plaintiffs identified in

support of their motion for issuance of a letter rogatory for Gordon Buchan.

21. Attached as Exhibit 13 is a true and correct copy of Lead Plaintiff’s Notice of

Motion and Motion For Letters Rogatory Seeking Judicial Assistance In Compelling Maurice

Tavares, Gordon Buchan, and Mario Leduc To Give Testimony And Produce Documents, filed

on June 30, 2006.


Superior Court Of Justice Of Ontario, Canada for Gordon Buchan, issued on August 4, 2006.

23. Attached as Exhibit 15 is a true and correct copy of Plaintiffs’ application to the

Canadian court to enforce the letters rogatory for Gordon Buchan, Mario Leduc, and Maurice

Tavares, filed on September 29, 2006.

24. Attached as Exhibit 16 is a true and correct copy of an August 11, 2006 letter from

Philip Besirof to Anthony Harwood.

25. Attached as Exhibit 17 is a true and correct copy of an October 6, 2006 letter from

Philip Besirof to Jon Adams.

26. Attached as Exhibit 18 is a true and correct copy of an October 13, 2006 letter

from Philip Besirof to Jon Adams.

27. On August 30, 2006, JDSU served requests for admission on Plaintiffs. Plaintiffs’

responses were due by September 29, 2006. Plaintiffs failed to serve responses to those requests

until November 6, 2006.

28. On August 30, 2006, Defendants Charles Abbe and Jozef Straus served their first

sets of interrogatories to Plaintiffs. Plaintiffs’ responses were due by September 29, 2006.

Plaintiffs failed to serve responses to all of those interrogatories until November 1 (for Dr. Straus)

and November 6 (for Mr. Abbe).

29. On November 3, 2006, the parties were required to supplement their Rule 26

disclosures and discovery responses. JDSU complied with that deadline; Plaintiffs did not.

30. JDSU stipulated (after the fact) to allow for Plaintiffs’ late service of their

supplemental Rule 26 disclosures.


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31. Attached as Exhibit 19 is a true and correct copy of a November 10, 2006 letter

from Anthony Harwood to Philip Besirof.

32. Attached as Exhibit 20 is a true and correct copy of JDSU’s submission in the

Canadian court concerning enforcement of the letter rogatory for Thomas Pitre, filed April 20,

2006.

33. Attached as Exhibit 21 is a true and correct copy of an August 2, 2006 letter from

Terri Garland to Anthony Harwood.

34. Attached as Exhibit 22 is a true and correct copy of a June 27, 2006 letter from

Anthony J. Harwood to Terri Garland and Howard Caro.

35. During a July 6, 2006 meet-and-confer session, Plaintiffs first requested that JDSU

stipulate to the issuance of letters rogatory for certain former JDSU employees in Canada.

36. Attached as Exhibit 23 is a true and correct copy of an October 18, 2006 letter

from Terri Garland to Anthony Harwood.


Superior Court Of Justice Of Ontario, Canada for Kenneth Bradley, which was issued on

October 17, 2006.

38. In October 2006, I participated in a meet and confer session with Anthony

Harwood in which he stated that Plaintiffs did not believe extending the discovery deadline would

affect other deadlines in the case.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct and that this Declaration was executed in San Francisco, California,

on this 14th day of November 2006.

/s/ Philip T. Besirof

Philip T. Besirof


Exhibit 1


Aun-24-06 12:07pm From-Fasken M a r t i neau DuMoul i n LLP 416 364 7813 T-582 P.003/027 F-771

Court File No. 06-CV-3425 1

ONTARIO SUPERIOR COURT OF JUS'FICE

BETWEEN:

CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS, on behalf of all similarly situated investors in 3DS Uniphase Corporation

Applicant

THOMAS PITM and JDS UNIPHASE I:ORPORATION

Respondents

APPLICATION UNDER Rules 14.05(2) and (3)(h) of the Rules of Civil Procedure and section 60(1) of the Evidence Act, R.S.O. 1990, c.E.23

PACTUM OF THE APPLICANT (Application Returnable August 30,2006)

FASKEN MARTINEAU DUMOULIN LLP Barristers and Solicitors Patent and Trade-mark Agents 66 Wellingtcm Street West Suite 4200, Toronto Dominion Bank Tower Box 20, Toronto-Dominion Centre Toronto, Onrario, Canada M5K 1N6

Christine Tabbert [LSUC #43594K]

Tel: 416 865 4465 Fax: 416 364 7813

Solicitors for the Applicmt, Connecticut


Aun-24-06 12:IOpm From-Fasken M a r t i neau DuMoul i n LLP 416 364 7813 T-582 P.013/027 F-771

- 9 -

as wdl, and that the members of JDS' senior management knew that, and that it would have the efEect of a sevr:re reduction in JDS' revenues beyond their public projections, and I think he will also be able to testify that there was inventory building up that was becoming obsolete.

And if you are asking about what evidence do we have of that we have received a couple of e-mails from the Defendants which show Mr. Pitre had that view about demand and that showed Mr. Pitre was involved in analyzing inventory obsolescence.

... I haven't spolcen to Mr. Piwe. I don't know what he lcnows and I don't know what he is going to say, other than what I have described.

Harwood Transcript, Application Record, pager 3 1 m 35, questions 107 la 115

22. Although he was cross-examined at length as to whether the information sought

from Mr. Pitre is available from other sources, Mr. H ~ w o o d was very clear on cross-

examination that while other individuals would have knowledge about demand and inventory at

JDSU, he does not believe that the knowledge others may have about demand and inventory is

exactly the same knowledge as Mr. Pitre. For example, Mr. Pitre is the only person who can

testify as to why he sent the Email.

Ilanvood Tranucripr, Application Record,page 1 13, qu<stion 497

23. Mr. Pitre told an attorney in Mr. Hamood's office, during a telephone

conversation on August 14, 2003, that senior management of JDSU's Ottawa headquartas was

aware of the downturn in demand, and that there war a divergence betweep actual demand and

JDSU's forecasts when senior executives sold their stock in July and A u p t 2000. He also


Aun-24-06 12 :13pm From-Fasken M a r t i n e a u DuMoul i n LLP 4 1 6 3 6 4 7 8 1 3

- 22 -

(vi) Not Unduly Burdensome

57. There is no evidence that Mr. Pitre would be unduly burdened by giving his

evidence in accordance with the Letter Rogatory. Mr. Hruwcrod testified that he does not believe

that the request contained in the Lener Rogatory would impose an undue burden on Ivir. Pipe.

Mr. Pitre did not refute this evidence. No specific concerns having been expressed by Mr. Pitre

in this regard, it is submined that requiring Mr. Pitre to attend at an examination in Ottawa

pursuant to an order of this Honourable Court would impose no greater burden on Mr. Pitre than

if he were compelled under Ontario civil procedure to attend on an examination for discovery of

a non-party in an Ontario action.

Harwood Affidavit, Application Record, Tab 2, page 11, paragraph 10

58. In short, there is nothing in the Letter Rogatory that poses a limit or infringement

on the sovereignty of Canada or its citizens (including Mr. Pitre).

PART W - ORDER REQUESTED

59. Connecticut seeks an order giving effect to the Letter Rogatory on such terms as

this Honourable Court may deem jult, with costs on a partial indemnity basis, payable by the

respondent JDSU.

ALL OF WHICEI IS RESPECTFULLY SUBMITTED this 241h day of August, 2006

Counsel to the applicant Connecticut


Exhibit 2


I 425 MARKET STREET M O R R I S O N L FOBRSTER LLP

M O R R I S O N FOERSTER SAN FRANCISC~ NEW Y O R K , S A N FRANCISCO,

CALIFORNIA 94105-2482 LOS ANGI?I.ES, P A L 0 ALTO, SAN D I E G O , WASHINGTON, U.C.

TIjZPHONF,: 415.268.7000 DENVER* NORTHERN V I R O l N l A , O R A N G E C O U N T Y , SACRAMENTO,

PAcSIhfUE: 415.268.7522 WALNIIT C R E E K , C ~ N T U R Y CITY

WWW.MOFO.COM TOKYO, L O N D O N , B E I J I N G , S H A N G H A I , H O N G K O N G , SING.%PORK. BRUSSELS

July 22,2005 Writer's Direct Contact 415/268-6095

By Fax (21 2-8 1 8-0477)

Barbara J. Hart, Esq. Goodkind Labaton Rudoff & Sucharow LLP 100 Park Avenue New York, New York 10017

Re: In re JDS Uniphase Securities Litigation NO. C-02-1486 CW (N.D. Cal.)

Dear Barbara:

This letter memorializes that today, defense counsel produced emails fiom Thomas Pitre's account to ellitigation Solutions for reproduction at Lead Plaintiffs expense. The documents are labeled JDSU 0022959 - JDSU 0025824.

Please note that we expect to produce additiod emails from Mr. Pitre's account as soon as possible. When I proposed today as our target for production of Mr. Pitre's emails, I believed that Mr. Pitre's emails resided on an active server. When I returned fiom a business trip on Thursday, I learned that Mr. Pitre's emails had been preserved on back-up tapes instead. Production fiom back-up tapes requires substantially more time, as the information first must be restored. Therefore, today's production includes responsive, non-privileged emails that we have processed to date from back-up tapes.

Very truly yours,

544.' &!d Q.# Terri Garland


425 MARKET STREET M O I I B I S O N L F O B R S T E R 1 . 1 . ~

Y O R R I S O N I P O E R S T E R sA, F R ~ N ~ ~ ~ ~ ~ N E W Y O R K . S A N F R A N C I S C O ,

LO5 A N G E L E S , P A L 0 ALTO, C*L1'O'~ l* 94105-2482

S A N D I E C O , W A S H I N G T O N , D.C.

T ~ ~ ~ ~ ~ 0 ~ ~ : 4 1 5 . 2 6 8 . 7 0 0 0 D E N V E R , N O R T H E R N V I B G l N l A ,

O R A N G E C O U N T Y , S A C R A M E N T O , FAcs1M1LE:415.26 ''7~~' W A L N U T C R E E K , C E N T U R Y CITY

September 16,2005

TOKYO. L O N D O N , B E I J T N G , S H A N G H A I , H O N G K O N G ,

S I N G A P O R E . BBlUSSELS

Writer's Direct Contact 41 51268-6091

By Fax (212-818-0477) & U.S. Mail

Anthony J. Harwood, Esq. Goodkind Labaton Rudoff & Sucharow LLP 100 Park Avenue New York, New York 1001 7

Re: In re JDS Uniphase Securities Litigation, Master File No. 02-1486 CW (EDL)

Dear Tony:

I write to provide Lead Plaintiff with a further discovery status report for the week of September 12, which supplements the two-hour telephone conversation that we had on Monday.

This week we completed our review of the email account of Thomas Pitre. Today we produced responsive, non-privileged email from Mr. Pitre's account to your vendor, eLitigation Solutions. The production also includes a copy of the Company's document retention policy that was in effect during the Class Period. The documents are Bates-labeled JDSU 0033531 - JDSU 0049047.

As we discussed during our meet-and-confer conference on Monday, we are working diligently to review the ernail accounts of the recipients of Mr. Pitre's August 18,2000 email (the "Pitre email recipients"). As of today, we have located email accounts belonging to twenty-three of the Pitre email recipients. As we discussed during Monday's call, at this time, we do not anticipate that the Company will need an alternative production schedule to the October 4,2005 date contained in Judge Laporte's order. If our production timetable changes, we will meet and confer with you fixher regarding an alternative schedule.

On September 9, we provided Lead Counsel with a list of proposed electronic search terms and asked for Lead Plaintiffs response. A week has now passed, and Lead Counsel has not provided us with any additional search terms that it seeks to have added to the proposed list.


M O R R I S O N I P O B R S T E R

Anthony J. Hawood, Esq. September 16,2005 Page Two

Although the Company is using its best efforts to meet the Court's October 4 production deadline without the use of electronic search terms, Lead Counsel's delay in providing feedback on our proposed search terms increases the time and expense in completing this task. It aIso hinders our ability to review additional documents simultaneously. Accordingly, we ask that Lead Counsel immediately provide us with any comments on the proposed list of search terms.

This week we also have continued to collect and review electronic and hard copy documents in San Jose and Ottawa from the custodians identified by JDSU in General Objection number 14, as we11 as from the additional custodians agreed to between the parties. We are also expanding our document collection efforts to Company sites in Bloomfield, Connecticut and Melbourne, Florida.

As you are aware, the Company has made two witnesses available for depositions in response to Lead Plaintiffs 30(b)(6) deposition notice. We understand that Lead Plaintiff seeks to complete that deposition, and we will address that issue next week.

Today we received Lead CounseI's signature page on the parties' proposed protective order. We will file the proposed order with the Court on Monday.

Finally, this acknowledges your letters of September 14 and 16. We will respond to those letters under separate cover.

Very truly yours,

Philip T. Besirof


Exhibit 3


MEMO. OF P & A IN SUPP. OF LEAD PLTF’S MOT. FOR LETTERS ROGATORY Master File No. C 02-1486 CW

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Joseph J. Tabacco, Jr. (75484) Christopher T. Heffelfinger (118058) BERMAN DeVALERIO PEASE TABACCO BURT & PUCILLO 425 California Street, Suite 2025 San Francisco, California 94104-2205 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Fundsand Counsel for Oklahoma Firefighters Pension and Retirement System Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker (179083) Jon Adams LABATON SUCHAROW & RUDOFF LLP 100 Park Avenue New York, New York 10017-5563 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds [Additional counsel listed on signature page]

Redacted Pursuant to Local Civ. R. 79-5(d)



OAKLAND DIVISION IN RE JDS UNIPHASE CORPORATION SECURITIES LITIGATION

))))))))) ) ) ) ) )

Master File No. C 02-1486 CW LEAD PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR A LETTER ROGATORY SEEKING JUDICIAL ASSISTANCE IN COMPELLING THOMAS PITRE TO GIVE TESTIMONY AND PRODUCE DOCUMENTS Date: January 24, 2006 Time: 9:00 a.m. Ctrm: E, 15th Floor Before: Hon. Elizabeth D. Laporte


NOTICE OF MOTION AND MOTION FOR A LETTER ROGATORY

r0 : ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on January 24, 2005 at 9:00 a.m., or as soon thereafter as

he matter may be heard, in the Courtroom of the Honorable Elizabeth D. Laporte, United States

VIagistrate Judge, 450 Golden Gate Avenue, San Francisco, CA., 94102, Lead Plaintiff, the

Jonnecticut Retirement Plans and Trust Funds ("Connecticut") will, and hereby does request,

Iursuant to Rule 28 of the Federal Rule of Civil Procedure, that this Court issue a Letter

togatory to the Superior Court of the Province of Ontario, Canada. This motion is based upon

he Declaration of Anthony J. Harwood ("Harwood Decl."), the exhibits annexed thereto, the

iles, records and proceedings herein, and other such matters and argument as the Court may

:onsider in the hearing of this motion.

By this motion, Lead Plaintiff seeks a letter rogatory requesting the Superior Court of the

'rovince of Ontario, Canada to compel Thomas Pitre to testify at a deposition and produce

ioc~unents.

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF ISSUES TO BE DECIDED

Whether this Court should issue a letter rogatory seeking judicial assistance from the

guper~or Court of the Province of Ontario, Canada, in compelling a central witness, Thomas

'itre, to test~fy at a deposition and produce documents.

STATEMENT OF FACTS

Lead Plaintiff Connecticut has brought this case as a class action on behalf of all

nvestors who acqu~red the securities of defendant .IDS Uniphase Corporation ("JDS") at a time

vhen the defendants were grossly misrepresenting JDS's financial condition to the public.

leclaration of Anthony J. Harwood ("Harwood Decl."), dated December 20,2005,y 2.

Llthough the defendants h e w that demand for JDS's products was declining, that its goodwill

vas wildly inflated and that its inventory of obsolete products was building, JDS's senior

:xecutives hid this information and issued rosy pronouncements that projected demand for its

~roducts was strong. Id. In addition, JDS improperly recognized revenue in violation of

W P L Y MEMO OF P & A IN SUPP. OF LEAD PLTF'S MOT. FOR LETTERS ROG.4TORY Master Fale No C 02-1480 CW


3enerally Accepted Accounting Principles to help hide JDS's financial condition. Id. When the

stock was near its peak, the individual defendants, who were JDS's most senior executives,

inloaded massive amounts of their overvalued stock on unsuspecting investors, reaping hundred

~f millions of dollars in profit. Id. JDS also profited from the fraud, using its inflated stock to

mrchase tluee other companies for less than their fair value. Id. When JDS could no longer

teep the truth hidden, it finally disclosed that it had to write off $44.8 billion dollars in goodwill

md $270 n~illion in inventory, and that demand for its products had fallen dramatically. Id.

rhese disclosures caused its stock to collapse, leaving the investors with billions of dollars in

Thomas Pitre possessed detailed knowledge of the declining demand for JDS's products

luring the summer of 2000. Id. at 7 3. This is well demonstrated by an email that Mr. Pitre

lrafted and widely distributed throughout JDS. Mr. Pitre's email states, in relevant part:

I have noticed through various conversations with Redbook folks that a major disconnect exists between future forecasted demand and our growth curve. It means that we have a divergence between our overarching growth of 25% QTRIQTR and the forecast demand out in Q3 and 44. So stated plainly the forecast out in 4 3 and Q4 is substantially less than onr projected growth curve.

d. at 1[ 4 and Ex. A. -

When Mr. Pitre wrote this email, he was a demand manager for the Fiber Optics Product

3roup in JDS's Ottawa office. Id. at 7 5 and Ex. B. That group accounted for ,*g3 of the e

:ompany's revenue in the first quarter of fiscal year 2000. Id. at 7 5 and Ex. C.

Events unfolded as Pitre said they would. Demand for JDS's products declined

Iramatically in the third and fourth quarters of fiscal year ending June 30, 2001. When JDS

lisclosed this decline and other adverse information, its stock plummeted. Id. at 7 6.

Mr. Pitre is no longer employed by JDS. He lives and works in Ontario, Canada and is

lot a citizen of the United States. Counsel for Connecticut has been unable to obtain his

lgreement to cooperate as a witness. Id. at 1 7

REPLY MEMO. OF P & A M FURTHER SUPP OF LEAD PLTF'S MOT. FOR CLASS CERTIFICATION M z t e r File No. C 02.1486 CW

2


ARGUMENT

Federal Rule of Civil Procedure 28(b) sets forth the procedure for obtaining deposition

:estimony from a witness in a foreign country. It provides:

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), or (3) on notice before a person authorized to administer oaths in the place where the examination is held. either bv the law thereof or bv the law of the United States, or (4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a conunission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. . . .

The proper procedure for obtaining deposition testimony and compelling the production

~f documents in Canada for use in an action in the United States is to proceed by means of a

etter rogatory. See U.S. Dep't of State, Judicial Assistance in Canada, available at

1ttp:Ntravel.state.go~~/law/info/judiciaVjudicial~682.html.

As shown above in the statement of facts and in the accompanying affidavit, Mr. Pitre

was intimately involved in the preparation of demand forecasts, wluch are at issue in this case.

rherefore, his testimony is highly relevant, and he is likely to have documents in his possession

,elated to the issues in this case. Indeed, in her order denying defendants' motion to dismiss the

iecond amended complaint, Judge Wilken relied on Mr. Pitre's email to find that defendants'

lssertions that demand was strong were false when made. See Order dated January 6, 2005.

iccordingly, Connecticut respectfully requests that the Court grant its motion and issue a letter

ogatory in the form submitted herewith.

REPLY MEMO OF P & A W FURTHER SUPP OF LEAD PLTF'S MOT. FOR CLASS CERTlFlCATION Master Fcle No. C 02.1486 CW

3


Of Counsel:

Respectfully submitted,

LABATON SUCHAROW & RUDOFF LLP

By:

Anthony J. Harwood Michael Stocker Jon Adams

Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Futids

Joseph J. Tabacco, Jr. (75484) Christopher T. Heffelfinger (1 18058) BERMAN DeVALERIO PEASE

TABACCO BURT & PUCILLO

Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds And Counsel for Intervenor Oklahoma Firefighters Pension and Retirement System

Catherine E. LaMarr General Counsel Office of the Treasurer of the State of Connecticut 55 Elm Street Hartford, Connecticut 06 106

Hon. Richard Blumenthal Attorney General of Connecticut Joseph Rubin Associate Attorney General 55 Elm Street Hartford, Connecticut 06106

REPLY MEMO. OF P & A M FURTWER SUPP. OF LEDPLTF's MOT. FORCLASSC~RTIPICATION Master File No. C 02.1486 CW

4


Exhibit 4


Case 4:02-cv-01486 Document 433 Filed 0111 812006 Page 1 of 8

Joseph J. Tabacco, JR. (75484) Christopher T. Heffelfiager (1 18058) BERMAN DeVALERIO PEASE

TABACCO BURT & PUCILLO 425 California Street, Suite 2025 San Francisco, California 941 04-2205 Telephone: (41 5) 433-3200 Facsimile: (4 15) 433-6382

Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds and Counsel for Oklahoma Firefighters Pension and Retirement System

Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker (1 79083) Jon Adzuns LABATON SUCHAROW & RUDOFF LLP 100 Park Avenue New York, New York 10017-5563 Telephone: (2 12) 907-0700 Facsimile: (2 12) 8 18-0477

Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds



OAKLAND DMSION

N RE JDS UNIPHASE CORPORATION ) Master File No. C 02-1486 CW SECURITIES LITIGATION 1

) [PR€WWW] LETTER ROGATORY TO ) THE SUPERIOR COURT OF JUSTICE OF ) ONTARIO, CANADA 1 ) Date: January 24,2006 ) Time: 9:00 a.m. ) Ctrrn: E, 15th Floor ) Before: Hon. Elizabeth D. Laporte 1

PROPOSED LETFER ROGATORY Master File No. C 02-1486 CW


Case 4:02-cv-01486 ' Document 433 Filed 0111 812006 Page 2 of 8

TO THE SUPERIOR COURT OF JUSTICE OF ONTARIO, CANADA:

WHEREAS the captioned action is properly under the jurisdiction of and is now pending

in this Court; and

WHEREAS it appears necessary for the purpose of justice that Thomas Pitre, a witness

residing or otherwise doing business within your jurisdiction be examined there, with a view to

testifying, producing, authenticating and reviewing documents within his possession and control

YOU ARE REQUESTED, in furtherance of justice, to cause the aforesaid witness to

appear by means ordinarily used in your jurisdiction to answer questions under oath or

zfinnation and to bring to and produce at the examination the documents set forth in the

schedule annexed hereto.

When you request it, this Court is ready and willing to do the same for you in a similar

:ase.

This Letter Rogatory is signed and sealed by Order of the Court made on the date set

forth below.

Dated: January 17,2006

ELIZABETH D. LAPORTE United States Magistrate Judge

PROPOSED LETTER ROGATORY Master File No. C 02-1 486 CW


Case 4:02-cv-01486 Document 433 Filed 0 I11 812006 Page 3 of 8

SCHEDULE A

DEFINITIONS

1 . "You" and "Your" shall mean each person to whom this document request is

directed and any persons acting on their behalf or under their direction or control.

2. "JDSU" or the "Company" means JDS Uniphase Corporation and each of its

subsidiaries, divisions, subdivisions, afiliated companies or persons, predecessors, and all

present and former directors, officers, employees, representatives, advisors, agents,

intermediaries, attorneys, accountants and all other persons acting on its behalf.

3. "Individual Defendants" means Jozef Straus, Kevin Kallchoven, Anthony R.

Muller, and Charles J. Abbe, both collectively and individually.

4. "Defendants" means JDSU, and the Individual Defendants, both collectively and

individually.

5. "SEC" means the United States Securities a d Exchange Commission and all

employees, bureaus, divisions, regional offices, and representatives thereof.

6. "RedBook" means internal product demand forecasts produced by JDSU.

7. "RedBook Team" means the employees, consultants or other personnel at JDSU

responsible for generating the RedBook.

8. "Document" or "Documents" means any and all written, recorded or graphic

material, whether recorded or stored in hard copy or electronically, including but not limited to:

tapes or other voice recordings, e-mails, booklets, brochures, pamphlets, circulars, notices,

periodicals, papers, contracts, agreements, photographs, agendas, minutes, memoranda, written

instructions, messages, appraisals, analyses, reports, plans, evaluations, financial calculations an

representations, diary entries, calendars, phone or other logs, correspondence, telegrams, press

releases, advertisements, notes, transcripts, working papers, drawings, schedules, tabulations anc

projections, surveys, studies, graphs, charts, films, printouts, and all other data, including drafts

PROPOSED L E ~ R ROGATORY Mastet File No. C 02-1486 CW

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of or modifications to, including subsequent reproductions containing additional commentary,

notes or annotations.

9. "Communication" means any and all transmittals of information, in the form of

facts, ideas, inquiries or otherwise, whether orally, electronically or in writing; whether directly

or indirectly; and whether in person or by telephone, telecopier, mail, personal delivery,

electronic mail, Internet or otherwise.

10. "And," "or" and "and/or" have both conjunctive and disjunctive meanings; "all"

and "any" means each and every.

11. "Concerning" means directly or indirectly referring to, relating to, connected

with, commenting on, impinging or impacting upon, affecting, responding to, showing,

describing, analyzing, reflecting on or considering.

12. "Refer," "relate," "referring" and "relating to" mean any and all documents whic

comprise, memorialize, embody, discuss, evaluate, consider, comment on, reflect, record or

report on the subject matter of the request, or which were reviewed in conjunction with, or wen

created, generated or maintained as a result of, the subject matter of the request.

13. "Meeting" means the contemporaneous presence of any natural persons, in

person, by telephone or by any other means, for any purpose, whether or not such presence was

by chance or prearranged, and whether or not the meeting was formal or informal or occurred i~

connection with some other activity.

INSTRUCTIONS

1. In responding to this Request, You shall produce all responsive documents whic:

are in Your possession, custody or control, or in the possession, custody or control of Your

agents, employees, attorneys, accountants or other representatives. A document shall be deeme

to be within Your control if You have the right to secure the document or a copy of the docurne

from another person having possession or custody of the document. PROPOSED LETTER ROGATORY Master File No. C 02-1486 CW

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2. You are to produce for inspection and copying by Plaintiffs original documents a:

:hey are kept in the usual course of business, or You shall organize and label them to correspond

Kith the categories in these requests. All non-identical copies which differ fiom the original or

?om the other copies produced for any reason, including, but not limited to, the making of notes

hereon, are to be produced.

3. If any responsive document was, but is no longer in Your possession or subject to

four control, state whether it is: (a) missing or lost; (b) destroyed; (c) transferred voIuntarily or

nvoluntarily to others; or (d) otherwise disposed of, and in each instance identify the name and

lddress of its current or last known custodian, and the circumstances surrounding such

lisposition.

4. You shall produce said documents as they are kept in the usual course of business

,r shall organize and label them in correspondence with the categories in this request.

5. You are to produce all documents originating in, referring to, considering or

loncerning the Relevant Time Period.

6. Where a claim of privilege is asserted in responding or objecting to any Requests

.or Documents, and information is not provided on the basis of such assertion, You shall in the

-esponse or objection identify the nature of the privilege (including work product) which is bein]

;laimed; and set forth the state privilege rule being invoked and indicate whether (a) such

locuments exist, or (b) such oral cornmunications took place. In addition, if any part of the

tequest for Documents is deemed to call for the production of any privileged materials and such

~rivilege is asserted, a list is to be W s h e d identiQing each document so withheld together wit1

he following information:

(a) the reason for withholding;

(b) statement of facts constituting the basis for any claim of privilege, work

~roduct or other ground of non-disclosure; PRamsw L ~ R ROGATORY 4 Master File No. C 02-1486 CW


Case 4:02-cv-01486 Document 433 Filed Of I1 812006 Page 6 of 8

(c) brief description of the document, including:

(i) the date of the document;

(ii) the name of its author, authors, or preparers and an identification

by employment and title of each such person;

(iii) the names of each person who was sent or had access to, or

custody of the documents, together with an identification of each such person;

(iv) the paragraph to this request to which the document relates; and

(v) in the case of any document relating in any way to an oral

communication, identification of such oral communication.

(vi) If the documents requested herein have been lost or destroyed, the

documents so lost or destroyed shall be identified by author, date and subject matter.

7. You are to produce each document requested herein in its entirety without

deletion or excision (except as qualified by the preceding instruction concerning privilege),

regardless of whether You consider the entire document to be relevant or responsive to the

request.

8. Where a document is not produced in full or is produced in redacted form, so

indicate on the document. State with particularity the reason it is not being produced in full, and

describe to the best of Your knowledge, information and belief, and with as much particularity a!

possible, those portions of the document which are not being produced or are being redacted.

9. You are to supplement Your responses if, subsequent to the date of this Request,

you locate or come into possession of documents responsive to this Request.

10. You are requested to provide an appropriate affidavit attesting to the authenticity

of the documents produced.

PROPOSED L E ~ R ROGATORY Master File No. C 02-1486 CW 5



RELEVANT TIME PERIOD

Unless otherwise specified, the relevant time period for these Document Requests shall

,e from October 28, 1999 through July 26,2001, inclusive, and shall include all documents and

nforrnation that relate in whole or in part to such periods, or to events or circumstances during

;uch periods, even though dated, prepared, generated, used or received prior or subsequent to

hose periods. If a different time period is indicated in a particular document request, that time

jeriod shall similarly include all documents and information that relate in whole or in part to

inch period, or to events or circumstances during such period, even though dated, prepared,

[enerated or received prior or subsequent to that period.

REQUEST FOR DOCUMENTS

1. AII documents produced, authored, or otherwise created by You concerning the

rroduction of JDSVs product demand forecasts.

2. To the extent not covered by Request Number 1, all documents produced,

luthored, or otherwise created by You concerning the production of JDSU's RedBook.

3. All documents reviewed or relied upon by You or any other member of the

ledBook team in preparing product demand forecasts

4. To the extent not covered by Request Number 3, all documents reviewed or relief

lpon by You or any other member of the RedBook team in preparing any RedBook.

5. All documents concerning or reflecting any communications between You and th

ndividual Defendants, including email or other electronic communications.

6. All documents concerning, reflecting, or memorializing any presentations made

,y you or any other member of the RedBook Team to the Individual Defendants.

7. To the extent not covered by Request Number 6, any documents provided by yot

IT any other member of the RedBook Team to the Individual Defendants, including but not

imited to documents concerning JDSU's product demand forecasts or RedBook.

8. All documents concerning JDSU that were sent to, received from, or concerning

:ommunications with the SEC or other regulatory agency.

mcoPosm LETTER ROGATORY Master File No. C 02-1486 CW

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Exhibit 5


06?28/2006 20:41 FAX 12128180477

Labaton Sucharow

L A B A T O N SUCHAROW LLP

VIA FACSIMILE

'1 'irnoth y Blnkely, Bsq. Howard Caro, Esq. Morri.rc)n & Focrstcr I I d a Ebxrnsn White & McAuEffc T.T.1' 425 Market Strcct 333 Bush Strccr San Fmncisco, Califonria 94 105-2482 San I:~sncisco, California 94104

1)car Tim and Howatd;

Yursuant to Magismre Laporre's May 18, 2(106 Otdct, I am enclosing Lead Plaintiffs proposed deposition schcdulc, which idendties those witncsscs who wc ~urrct~tly conrernphte deposing. As drscovcry is ongaing, we reserve our righc to amend this lisr: as we Icnm additionnl infrmauon.

\ Anthony J. Harwood C )f C:i runscl

cc: Jcffrcy Sqttite, Esq,




Exhibit 6


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[C 02-1486 CW] STIPULATION TO THE ISSUANCE OF LETTERS ROGATORY

[Counsel listed on signature page.]



In re JDS UNIPHASE CORPORATION SECURITIES LITIGATION This Document Relates To: All Actions

) ) ) ) ) ) ) ) )

Master File No. C-02-1486 CW CLASS ACTION STIPULATION AND [PROPOSED] ORDER TO THE ISSUANCE OF LETTERS ROGATORY

Case 4:02-cv-01486 Document 649 Filed 10/12/2006 Page 1 of 4Case 4:02-cv-01486 Document 680 Filed 11/14/2006 Page 2 of 5

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[C 02-1486 CW] STIPULATION TO THE ISSUANCE OF LETTERS ROGATORY

WHEREAS, Lead Plaintiff, Connecticut Retirement Plans and Trust Funds, seeks a

Letter Rogatory to the Superior Court of the Province of Ontario, Canada to compel Ken

Bradley, who resides at 173 Knudson Dr., Kanata, Ontario, to testify at deposition and produce

documents;

WHEREAS, Lead Plaintiff also seeks a Letter Rogatory to the Superior Court of the

Province of Quebec, Canada to compel Tom Dorval, who resides at 5617 Av Gatineau,

Montreal, Quebec H3T 1X6, to testify at deposition and produce documents;


Province of Ontario, Canada to compel Lou Greco, who resides at 42 Goulding Crescent,

Kanata, Ontario K2K 2N9, to testify at deposition and produce documents;


Province of Ontario, Canada to compel Ileane Nolan, who resides at 355 Melvin Ave., #1401,

Hamilton, Ontario L8H 2K9 and 521 Gilmour St, Peterborough, Ontario K9H 2K1, to testify at

deposition and produce documents;

WHEREAS, the parties wish to resolve the above matters without motion practice;

IT IS HEREBY STIPULATED by and between the parties to this action, through their

counsel of record, that the Court may issue proposed Letters Rogatory to:

(a) the Superior Court of the Province of Ontario, Canada in the form annexed hereto as

Exhibit A, seeking judicial assistance in compelling Ken Bradley to testify at deposition and

produce documents; and

(b) the Superior Court of the Province of Quebec, Canada in the form annexed hereto as

Exhibit B, seeking judicial assistance in compelling Tom Dorval to testify at deposition and

produce documents.

(c) the Superior Court of the Province of Ontario, Canada in the form annexed hereto as

Exhibit C, seeking judicial assistance in compelling Lou Greco to testify at deposition and

produce documents; and


2 [C 02-1486 CW] STIPULATION TO THE ISSUANCE OF LETTERS ROGATORY

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(d) the Superior Court of the Province of Ontario, Canada in the form annexed hereto as

Exhibit D, seeking judicial assistance in compelling Ileane Nolan to testify at deposition and

produce documents.

Respectfully submitted,

Dated: October 12, 2006 LABATON SUCHAROW & RUDOFF LLP

By: /s/ Anthony J. Harwood Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds

BERMAN DeVALERIO PEASE TABACCO BURT & PUCILLO

Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds

Dated: October 12, 2006 MORRISON & FOERSTER LLP

By: /s/ Philip Besirof Attorneys for Defendants JDS Uniphase Corporation, Charles J. Abbe, Jozef Straus, and Anthony Muller

Dated: October 12, 2006 HELLER EHRMAN LLP

By: /s/ Howard S. Caro Attorneys for Defendant Kevin Kalkhoven

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: HONORABLE ELIZABETH D. LAPORTE United States Magistrate Judge


3 [C 02-1486 CW] STIPULATION TO THE ISSUANCE OF LETTERS ROGATORY

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I, Anthony Harwood, am the ECF User whose ID and password are being used to file this

Stipulation and [Proposed] Order Regarding: Revised Class Notice and Publication of Class

Notice. In compliance with General Order 45, X.B., I hereby attest that Philip Besirof, attorney

for Defendants, JDS Uniphase Corporation, Charles J. Abbe, Jozef Straus, and Anthony R.

Muller, and Howard Caro, attorney for Kevin Kalkhoven, have concurred in this filing.

Dated: October 12, 2006 LABATON, SUCHAROW & RUDOLF LLP

By: /s/ Anthony Harwood Anthony Harwood Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds


Exhibit 7


Joseph 5. Tabacco, Jr. (75484) Christopher T. Heffelfinger (1 38058) BER%U BVALERIO PEASE

TAIBACCO BURT & PUCILLO 425 California Street, Suite 2025 San Francisco, California 94 104-2205 Telephone: (41 5 ) 433-3200 Facsimile: (42 5 ) 433-6382

Liaison Counsel for L e d Plaintiff Connecticut Retirement Plans and Trust Funds and Counsel for Oklahoma Firefighters Pension and Retirement System

Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker (1 79d83) Jon Adams- LABATON SUCHAROW & RWDOP LLP I00 Park Avenue New York.,Xew York 10017-5563 Telephone: (21 2) 907-0700 Facsimif e:. (2 12) 8 I 8-0477

Lead Counsel for Lead Plain= Cormecticut Retirement Plans aid Trust Funds

1 5 1 [Additional counsel listed on signatnre page] I I

UNITED STATES DISTFUCT COURT

NORTHERN DISTFUCT OF CALIFORNIA

OAKLAND DIVISION

TN RE JDS UMPHASE CORPORATION ) Master File No. C 02-1486 CW SECURITIES LITIGATION .

1. [ E ~ R ROGATORY TO ) m v R COURT OF JUSTICE OF ) QNTARIO, CANADA 1 1 1 ) 1 1 1 ) 1

Pno~osm L m BoGAmrr Master Fiie No. C02-1486CW


TO TAE SUPERIOR COURT OF ONTARIO, CANADA:

WHEREAS, the captioned action is properly under the jurisdiction of and is now pendin!

in this Court;

WHEREAS it appears that Ijeane Nolan has evidence relevant to this adion which will

ie adduced during the trial of this action if the evidence is ahisslile;

WEREAS -this evidence is not otherwise obtainable;

WHEREiAS, it appears necessary for the purpose of justice that neane Nolan, a witness'

residing or otherwise doing business within your jurisdiction be examined there, with a- view to

testifying, producing authenticating and reviewing documents within his possession and control;

YOU ARE REQUESTED, in furtherance of justice, to cause the aforesaid wihess to

appear by means ordinarily used in your jurisdiction to answer questions 'under oeth or

affirmatioa and to bring to and produce at the examination the,docurnents set forth in the


When you request it, this Court is ready and willing to do thc same for you in a similar

case;


forth below.

Daad: to/; p&


S C ~ D U L E A: II,EANF= NOUV

I. DrnrrIONS '

1. , 'Qefndants" means Defendants JDS Uniphase Corporatiori, Jozef Straw,

Anthony R. Muller, Charles J. A&, and Kevin Kalkhoven:

2. "IndividuaI Defendants" mean Defendants Jozef Straus, AnThony R. Mullet-,

Chades J. Abbe, and Kevin Kalkhoven.

3. "'JDS" means Defendant JDS Uniphase Corporation, its Board of Directors, each

committee of its Board of Directots, each of its subsidiaries, divisions, subdivisions, joint

/ I ventures, parents, afiliated and predecessors (including but not limited to Uniphase !

Corporation and JDS FITEL, Inc.), and its present rtnd former directors, offcers, employees,

representatives, agents, and other persons acting on behalf of any of them.

' 4. "Nortel" means NorteI Networks Corporation, its Board of Directors, each

committee of its Board of Directors, each of its subsidiaries, divisions, subdivisions, joint

11 ventures, parents, iffiiated persons, and pedccessm, and its present and former directors,

officers, employees, qresentjitives, agents, and other persons acting on behalf of anjr of them.

5. "E&Y" means Ernst & Young 'LLP, each of its subsidiaries, divisio~s,

/ subdivisions, offices, joint ventures, parents, affiliated persons, and predecessors, and all p e n ?I and former partners, directors, officers, employees, representatives, agents, intermediaries, and

other persons acting on behalf of any of the foregoing.

6. "Communication" means the transmittal of infomation, in the fbm of facts,

ideas, inquiries or otherwise. , .

7. '%onceming".meaps dating to, referring to, describing, evidencing or

constituting.

8. "Docment" is synonymous in mmmg and equal in scope to the usage of this

term in Rule 34(a) of the Federal Rules of Civil Procedure, and includes e-mails and electronic

or computerized data compilations. A draft or noon-identical copy is a separate dac~rne~t witbin

the meaning of this term.


3 11 during khich a ~pmunication of any kind ocnmed, and shall i n c l d withbut .I

I j l .- .- -'re

I I 4 limitation in-person conversationq telephone conversations, and teleconference or I

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9. "Meeting" means any encounter between two or more pe-s, whether I

p r e m g e d or by chance, and whether formal or informal or oocumd in connection with & 1

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1 videocaf-ce calla. i

I 10. "Prodncts" means any product developed, manufactured, or sold by JDS,

/ including but not limited to5ber+ptics, semiconductor lasers, high-speed ex~l'modu1ator.s; t

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20 11 herein is October 2% 1999 through July 26,2001. and shall include all documents which relate t 4

traixmitters, amplifiers, couplers, multiplexers, circulators, tunable filters, optical switches, and

isolatm for fiber-optic applications.

12. The terns "dl" and "each" shall be construed as all and each. I

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[/ such period even though published, sent or received, in whole or in part, prior or . I

13. The connectives "and" and "or" shall be consimed either disjunctively or

conjunctively as necessary to bring within tfre scope.of this Request for Pr~d~ctioil all responses

that might otherwise be corrsideed to be outside of its scope.

14. The use of the hguIar form of any word kludes the plural and vice versa.

3 5 . The term "you" or 'you?' shill mean or refer to IIeane Nolan.

subsequent to this period. I 23 1

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24 I I Hi. INSTRUCTIONS

1 I . "Person" means any natural person or any business, legal or governmental entity I

18 1 11. REUZVANT PERIOD i

19 Unless otherwise &csted in a specific Request for Production, the ~el&ant ~ertod

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25 11 1. In producing documents and other materials in response to this Request for i I! Production, you are requested a firrnish a11 documents in your possession, custody, or control, 26 1 I

t !

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regardless of whether such documents are possessed directfy by you or your agents, employees, I I

/ horn= zmmt ROGATORY j mas?^ Fik No. C 02-1 486 CW

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partners, representatives, subsidiaries, affiliates or investigators, or by your attorneys or their

1 agents, employees, or investigators.

i 2. All documents you produce in response to this request shall either: (a) be

11 organized and labeled to oorrespodd with the number of the request to which the documents an

f 11 responsive, or @) be produced in thc order and in the manna in which you keep the documents

1 in the usual course of business with z i designation of the file or filer fmm which the documents

1 ! have been produced. i

I 1 3. Produce each document in response to this Request for Production in its entirety, I i without deletion or excision, regaidless of whether you consider the entire document to be I! I / relevant or responsive. If any requested document cannot be produced in firl1, produce it to the

extent.possible, indicating which portion of that document is being withheld and the reason that

portion ofthe document is being withheld. Do not produce "redacted" docummts unless you ar,

/ I asserting a privilege or immunity with resp&t to Me A d p m d partion.

11 4. If you object to any request in this Request for ~rbduction on the ground that it is

1 lomly broad, produce documents in response to the request as narrowed to m n f m to your

I objection and state in your response (a) how you narrowed the request, and (b) the reason why f you claim the request is overly broad.

5. If you withhold any responsive document Erom production pursuant to a claim of

i attorney-client privilege, attorney work product doctrine, or any other privilege or immunity, I I I I provide the fo1lowiog information with respect to each such document:

(a) The type of document, ag., letter or memorandum;

i (b) The actual. or app~oximate'date of the document; f

(c) The author@) of the document and any other personis) who prepared OT participated in the preparation of the document;

(d) A description of the subject matter and physic81 size (e.g.. the number of pages) of the document;

(e) AII addressees and recipient(s) of the original or a copy thereof,

( f ) together with the date or approximate date on which said- recipient(s1 received the document or a copy thereoF,


(g) All other persons to whom the contents of the document have been disclosed, the date such discIosure took place, and the means of such disclosure; and

1 (h) The nature of the privilege or other rule of law relied upon and any t i facts supporting your position. f i t IV. DOCUMENTS REOUESTED i i

6 11 1. All electronic mail concerning JDS during the Relevant Time Period, inchding df . . !

electronic mail contained on your home or laptop computer and any electronic mail contained on t

any storage device or m storage.

2. All documents or comunications concerning Nortel's projected, forecasted, or ! i

) actual demand for JDS produck 10 f I

3. All documents or communications conceming the cancellation or modification of

any orders for IDS products by Nortel.

4. All documents or communications concerning the return of JDS prodrtcts by

Nortel.

. 5. All documents or communications concerning Nortel's receipt of 3DS products

prior or subsequent to the requested or agreed upon delivery date,

I 6. All documents or communications concerning Nortel's receipt of JDS products

, for orders that had been cancelled by N o d or for orders which Nortel had not made.

I 7. All documents or comunications concerning Nortel's refusal to accept de!ivery I - .

l i of SDS products or refusal to pay far IDS products. 20 i I

I I 8. A11 documents or communications concerning any meeting between Nortef and 21 I 11 JDS, including weekly, monthIy, quarterly, or ofha meetings at which (a) Nortel's historical, 22 ; I

I i projected, forecasted or actpi1 demand for JDS Products; (b) orders for JDS Products; (c) 23 I

on or cancellation of orders for JDS Products or fd) inventory of JDS Products was I /

9. . All documents or communications concerning Quarterly Business Reviews

between Nortel and 3DS.

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XU. . All documents or cammtl~lications concerning price negotiations for JDS product2

etwecn NorteI and IDS;

1 1. AH documents or communicatians concerning writt& or oral agreements between

Iortel &d 3aS related to the purchase of JDS products, including side letters-

12. An documents ? cornmuniiatio~~~ concerning OEM agreeme.& bktween ~ o r t e j

nd JDS,

f 3. All documents or communications concerning any IDS products stored at Nortel,

scl~ding without limitation kentory received fTom JDS on consignin& or with anL right of

14. AII documents concerning communications with E&Y concerning JDS.

IS. Alf. documents or communications concerning Nortel's policy for the retention or

estnrction of documents.

16. . All notes, calendars (personal and business), and other documents relating to JDS

iuring the Relevant Time Period.

17. All documents concerning sales of JDS products to Nortel on consignment,

ncluding correspondence concerning the terms of such consignment sales.

~ o ? O S € D LElT0R ROGATORY b k r e r File No. C 02-1486 CW 6


Exhibit 8


i ! ! IN RE JDS UNIPHASE C O ~ R A T S O N ) Master File No. C 02-1486 CW

i j

SECURITIES LITIGATION 1 . . 1 TTER ROGATORY TO

i ) THE SUPERIOR CUURT OF JT;'STJCE OF ) OFSTARIO, CkYADA 1 1 1

i ;

1 1, 1 r 1 1

! I i i i

PROPOSED i m ROGATORY

f Masm Fi!t No. C 02.1486 CW

i i

I 1 i Joseph J. Tabacco, Jr. (75484)

! Christopher T. Heffelfinger f l X 8058) 2 BERMAN DeVALERIO PEASE

TABACCO BURT & PUCILLO 3. 1425 Califania Street, Suite 2025

San Francisco, California 941 04-2205 Telephone: (415) 433-32;OO Facsimile: (41 5) 433-6382

- ,

Liaison Counsel for LRad Plaidff Comecticut Re-mi Plans and Trust Funds

I and Counsel for Oklahoma Firefighters 7

8

.I Pmsim and Retirement System

. Jonathan M.. PZasse i

9 :

10

Barban J. Hart Anthony 3. H a m d . .

Michael Stwka (I 79083) .Jon Adarns f LABATOX SUCHAROW & RUDOFF LLP 100 Park Avenue Mew York, New York 1.001 7-5563 Telephone: (2 12) 907-0700 Facsimile: (2 12) 8 1 8-0477

Lead CounseI for h a d Plaintiff Connecticut Retirement P h s and Trust Funds

[Additional counsel listed on signature page]

UNITED STATES DISTRTCT COURT

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18

1 NORTHERN DISTRICT OF CALIFORNIA i i OAKLAND DIVISIOX


I I i !

I TO THE SUPERIOR COWRT OF ONTARIO, CANADA:

i I

WHEREAS, the captioned action is properly undei the jwiidictior, of and is now pending

WHEREAS it appears that Lou M a has evidence relevant to tbis action which will be

the trial of thh action if the evidence is admissible; - .

f

AS tbis wideke is not otherwise obtainable; .

[I WHEREAS, it appears necessary for the prupme ofjustice that Lou Gnco, a witness I residing or otherwise doing business within your jurisdiction be exmined there, with a vitwto I

I testifjling, producing authmtibting and ;viewing documents within his possession and control; !

YOU ARE REQUESTED, in furtherance of justice, to cake the aforesaid yihtess to I appear by means ordinarily used in your jurisdiction to answer questions under oath or

affirmation and to bring to and produce at the examination the docume~ts set forth in the

f schedule annexed hereto. i

i When you request it, this Court is ready and willing to do the m e for you in a similar -

I This Letter Rogatory is signed and sealed by Order of the Cdur~ made ori the date set

/ forth below. i . ,

11 homsm mEkg m ~ m ~ y

/ / Master Fiic No. C 02-1486 CW

I


SCREDULE A: LOU GIUECO

t D E ~ O N S '

I/ .. "Defendants" means Defendants JIDS Uniphase Corporatiori, Jbzef Straus, 1 / Anthony R. MU&, Chadrs l &be, and Kevin Kal-.

2; "Individual Defendantsy7 mean Defendants Jozef Straus, ~ n t h o n ~ R. Muller, ( / Charles 3. Abbe, and Kevin Kaikhovm:

! 3. *'JaS" means Defendant JDS Uniphase Corporation, its Board of Directors, each 11 iommia of its b ~ d of Directors, each i f its subsidiaries, divisions, subdivisions, joint

I/ ventures, parents, affiliated persons, and predecessors (including but not limited to Uniphase

I / Corporati& and IDS RTEL, Inc.), and its present and former dktors, officers, employees,


4. 'Xortel" means NorteI Networks Corporation, its Board of Directors, each 1 committee of its Board of Directors, each of its subsidiaries, divisions, subdivisions, joint l i venturesy parenh, affiliated perkns, and predecessors, and its present and former directors,

ofticen, employees, representatives, agents, md other pasons acting on behalf of any of thmr

5. "E&Y" means Ernst & Young LLP, ach of its s.3bsidiaries7 divisions,

I ( subdivisions, offices, joint vennms, parents, asliated persons, and predsasors, and all prewnl

and former partners, directors, officers, employees, representatives, agents, intermediaries, and I I

t other persns acting on behalf of any of the foregoing. I I "Communication" means the transmittal of information, in the form of facts,

I! ideas, inquiries or otherwise.

7. "'Concerning" mans relating to, referring to, descning, evidencing or

constituting.

8. "Document" is synonymous in meaning and equal in scope to the usage of this

I I term in Rule 34t'a) of the Federal Rules of Civil Procedure, and includes e-mails and electronic

11 or computerized data compilations. A draft or non-identical copy is a separate docuiient within

1 the meming of this term. I I h0PLKED U3TEA ROGATORY Master Fik No. C 02-!486 CW 2


9. "Meeting" m e m any encour~ter between two or more persons, whether

mearranged or by chance, and whether formal or informaf or occurred in connection with some

h r activity, dudng which a communication of any kind occurred, and shall iiclude withorrt

mitation in-person conversations, telephone conversations, and teIeconference or

ideoconference calls.

10. "Products" means any product developed, manufactured, or sold by DS,

~cluding but not Iirnited to fiber-optics, semiconductor lasers, high-speed external modulators,

ansmitters, amplifiers, couplers, muItiplexers, circulators, tunable filters, optical switches, and

lolators for fiber-optic applications.

1 1. "Person" means any natural person or any business, legal or governmental entity

r association.

! 2. The terms "all" and "each" shall be construed as all and each.

f 3. The connectives %d" and "of shall be construed either disijunctively or

onjucctively as necessary to bring within the scope of this Request for Production all response2

lat might othe&se be cmsi&red to be outside of its scope.

14. The use of the singular fom of any word includes the plural and vice versa.

15. The term "you" or ')row" shall mean or refer to Lou Greco.

E. -RELEVANT PERIOD

Unless otherwise indicated in a specific Request for Production, the Relevant Period

,erein is October 28,1999 through July 26,2001, and shall include all documenis which relate 1

uch period even .though prepared, published, sent or received, in whole or in part, prior or

ubsequent to &is period.

XI. IPJSTRUCTIONS

1. Jn producing d o c ~ e n t s and other marials in response to this Request for

'xoduction, you are requested to furnish an documents in your possession, custody, or controi,

egardless of whether such documents are possessed directly by you or your agents, employees,


2 agents, employees, or invebtigatqrs. I I 3 11 2. All documents you produce in response to this request shall either: (a) be i 4 11 orpized and labeled to correspond with the number of the request to which the documents an I

responsive, or @) be produced in the order and in the manner in which you keep the documents

in the usual cowse of business with a designation of the file or files from which the documezts i

i

9 )[without deletion or excision, regardless of whether you consider the entire document to be [ t i

7

8

10 relevant or responsive. If any requested document cannot be produced in full, produce it to the . I! I

1 have been produced.

3. Produce each document in response to this Request for Production in its entirety, i

extent possi'~1e, indicating which portion of that document is being nnd the reason that I i

52 1 portion of the document is being withheld. Do not produce "redacted" documents unless you arei i I f .

13 asserting a privilege or immunity with respect to the redacted portion. I I - I 1

14 11 4. If you object to any request in this Request for Production on the ground that it is ' i overly broad, produce documents in response to the request as narrowed b conform to your

objection and state in your response (a) how you narrowed the request, and @) the reason why 1 i

17 4 you claim the request is overly broad. ' I

18 j j 5 . If you withhold any responsive document from production pursuant to a claim of t

i 9 1 [attomy-clieht privilege, attorney work pmduct doctrine, or any other privilege or immunity, L i

20 provide the following information With respect to each such document: I! I (a) The type of document, e.g., letter or memorandum;

@) The actual or approximate date of the document; . .

(c) The author@) of the document and any other pmon(s) who prepared or participated in the preparation of the docwent;

fd) A description of the subject matter and physica1 size (eg., the ' I number of pages) of the document;

(e) AII addressees axid rececipientjs) of the original or a copy thereof,

(f) together with the date or approximate date on which said- recipient(s) received the document or a copy thereof;

Master File No. C 02-1486 CW 4


(g) A11 other persons to whom thecontents of the document have been disclosed, the date such disclosure took place, and the.means of

- such d i s c l o s ~ ; and i i

(h) The nature of the privilege or other rule of law relied upon and any' hcts supporting your position:

IV. DOCUMENTS REOUESTED I

i I . An electronic mail coficemhg D S during the Relevant Timc Period, including alf i

I I electronic mail contained on your home or Iaptop computer and any electronic mail contained on . I

!I any storage device or in storage. / i

I I 2. A11 documents or c~~]~munications concerning NoTteI's projected, forecasted, or [

1 3: AU documents or commrmications concerning the cancellation or modification of '

1 any orders for JDS products by Nortel. i 4. All documents or communications concerning the return of JDS products by i i

5. .All documents or communications concerning Nortel's receipt of JDS products ,

prior or subsequent to the requested or agreed upon delivery date.

6. All documents or communications concerning Norkl's wceipt of JDS products

fir orders that had been cancelled by Nortel or for orders which Nortel had not made.

7. All documents or communicaticms concerning Nortel's refirsal to accept delivery 19 I

.i 6f IDS products or refusal to pay for JDS products. - I i 20 I i

li 8. All documents or communications concerning any meeting between Nortel and 21 . I

, il IDS, including weekly, monthly, quarterly, or other meetings at which (a) Nortel's historical, i 22 .i

projected, forecasted or actual demand for JDS Products; @) orders for JDS Products; (c) I modifidion or cancellation of orders for JDS Products or (d) inventory of 3DS Products was

discussed.

9. A11 documents or communications concerning Quarterly Business Reviews I i I

between Nortel and JDS. I PnoPosao m a ROGATORY Master File Nc. C 02-1486 CW 5 .

i


10. All documents or communications concerning price negotiations for JDS produck

ehxreen Noml and JDS.

11. A11 documents or communications concerning written or oral agreements beiwee~

lartel and JDS related to the purchase of JDS products, including side tetters.

12. All documents or &m&unications concerning OEM agreements between Nmel

nd JDS.

13. A11 documents or communicatians concerning any JDS products stored at Nortei,

nclading without limitation inventory received from JDS on consipent or with any right.of

etum.

14. All docments concerning commmicatims with E&Y concerning IDS. . .

25. AB documents or communications concerning Nortel's policy for the retention 01

lestmction of documents.

16. All notes, calendars (personal and business), and other documents relakg to JD?

turing the Relevant T i e Peiiod.

, 7 All documents concerning sales of JDS products to Nortel m consig~ment,

ncllding correspondence concerning the term of such consigment sales.

~ O P O S P D me^ R ~ T O R Y Master Fik No. C 02-:486 CW . 6


Exhibit 9


I 4Z5MARKETSmEEX M(IRR1SON k FOERSTER LLP

M O R R I 8 O N F O E R S T E R SAN mZANCISC0 N ~ W YORK, S A N FRANCISCO,

CALIFORNIA 94101012482 1.0s ANGRLRS, P A L 0 ALTO, S I N D I E G O , WASHINGTON, D.C.

TFUPNONE: 415.268.7000 DP.NVI!R, NORTRRRN V I R G l N l A , O R A N G E C O U N T Y , SACRAMBNTO,

FACSIMILE: 415268.7522 WAI,NUT C R H R K , CENTURY CITY

WWW.MOI:O.COM TOKYO, L O N D O N , B B U I N G , SFlANGl3A1, H O N G K O N G ,

SINGAPORE, BRIISSQLS

July 17,2006 Writer's :Direct Contact

415.268.15095

Anthony J. Harwood, Esq. Labaton Suchaow & Rudoff LLP 100 Park Avenue New York, New York 1 001 7

Re: In re JDS Uniphase Corporation Securities Litigation, Master File No. 02-1486 CW (EDL)

Dear Tony:

I write further to our July 11,2006 meet-and-confer session. During that session, we addressed several topics, including deposition scheduling, confidentiality designations, JDSUYs responses to Plaintiffs' first set of interrogatories and second set of document demands, Plaintiffs' responses to Anthony Muller's frst set of interrogatories, attachments that were allegedly missing from certain emaiI produced by JDSU, the status olf Plaintiffs' document production and privilege logs, and JDSU's privilege assertions. Below, I address each of these topics in turn.

Deposition Scheduling

As you will recall, we were joined by Christopher Mitchell of Heller Ehrman for our , discussion of deposition scheduling. Together, we discussed scheduling for several of

Plaintiffs' proposed witnesses, as well as several of the confident@ witnesses that Defendants intend to depose. Before we spoke substantively about any witnesses, you expressed your commitment to scheduling depositions through a collaborative meet-and- confer process and you confirmed that you did not intend to undermine that prlocess by serving a deposition notice on July 10,2006 purporting to set dates for the depositions of Leslie Brown and Russ Johnson. JDSU is also committed to scheduling depositions in a collaborative manner, a process that should involve counsel for Mr. Kalkhoveri as well. In addition, as we discussed, collaborative scheduling is especially important given that the depositions of certain witnesses will be covered by specific Morrison & Foerster attorneys who have been working on particular factual issues relevant to those witnesses,. We believe that communicating as early as possible about potential deposition dates will greatly aid the scheduling process.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Two

Although we did not set any firm deposition dates for particular witnesses duing our session, I thought it would be he1pfi.d to articulate the general scheduling parameters expressed for each of the witnesses that we discussed. Those parameters are set forth below.

PlaintiJgs ' Proposed Witnesses:

Leslie Brown. Although Mr. Mitchell had previously indicated that Ms. Brown was available on August 8 or 9, it was noted that JDSU previously had identified those dates as potential dates for the deposition of John Libby in Connecticut. Mr. MitchelI reported that Ms. Brown would also be available during the week of August 14, most likely on August 14 or August 16. Alternatively, I stated that JDSU was willing to double-track the d.epositions of Mr. Libby and Ms. Brown for August 8 or 9,2006. You suggested that we tentatively list Ms. Brown for August 14 or 16, leaving August 8 and 9 free for Mr. Libby. I understand that Heller Ehrman has since confirmed that August 16 works for Ms. Brown, and we are available on that date as well. As you know, we have confirmed with Mr. Libby's counsel that he is available for deposition in Connecticut on the evenings of August 8 imd 9,2006 - timing selected by the witness - and have served a subpoena to that effect.

Russ Johnson. Mr. Mitchell reported that Mr. Johnson was available for depo:sition during the week of October 16 or during the period of October 23-26. You suggested. tentatively listing him for the week of October 16, without yet picking a date certain, to preserve scheduling flexibility. I agreed that this approach makes sense at this time, but noted that as time passes it will be difficuIt to hold that entire week for this one deposition.

Ernst & Young and the Financial Institutions. You had little to report about the status of scheduling depositions for Emst & Young witnesses, which Plaintiffs initially had proposed for September. You agreed, however, that it makes sense to try to cluster these depositions with the deposition of Mr. Johnson in October. In addition, although Pldntifi initially had proposed deposing a number of financial institutions (J.P. Morgan, RCM Capital Management LLC, TIMCOICitibank, Barclays Global Investors, and Smith BarneyICitigroup) in New York during October, you suggested that with Ernsit & Young moving to October, the depositions of the financial institutions might go forwid in September. Please provide us with an update on the status of your efforts to schedule dates for Emst & Young and the financial institution witnesses.

Piper Jafiay. You reported that the deposition of Piper Jafiay would likely go forward on July 24,2006. We've subsequently learned, however, that the deposition may not go forward on July 24 and may not occur at all. Please confirm the status of Piper J m y as soon as you can.

Lucent and Nortd. You stated that although Dan Harris has been in touch with Nortel and Lucent representatives, no dates (or tentative dates) had been set for deposing Nortel or


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Three

Lucent ivitnesses, and you had not yet served deposition subpoenas on either party. I confirmed that JDSU will not oppose the issuance of letters rogatory related tcb the proposed Nortel witnesses that have been identified by Plaintiffs. (Mr. Mitchell said that he would needed to confirm Mr. Kalkhoven's position on this issue.) Please report on the likely timing of these depositions as soon as you have an update.

Harry Defebach. I suggested that the week of August 7,2006 might work for the deposition of Mr. Deffebach, who resides in Highlands, North Carolina. We have been in further contact with Mr. Deffebach since our session and it now looks like he can be ~ivailable for deposition on September .11,12, or 13,2006, and that he could travel to New 'York or Atlanta for deposition on those days. This may be an attractive option, as it may permit Mr. Deffebach's deposition to be clustered on the East Coast with depositions of tlie financial institutions, which you have stated you intend to take in September in New York. Please let us know if these dates work fiom your perspective. In the meantime, we will verify these dates internally and will also check with Heller Ehman to see if these dates work for them.

Shelley Pietrwiak. You stated that you were in the process of trying to confirm with Ms. Pietrusiak that her deposition would go forward on July 27,2006. On July 12,2006 Tim Blakely sent an email informing you that we represent Ms. Pietrusiak and asking that you direct any communication intended for her to us. Ms. Pietrusiak is the primary caregiver of two children under four years old, which complicates the scheduling of her deposition and makes your suggested date of July 27,2006 impossible for her. We are working with her to obtain alternate dates and will provide those to you as soon as we have them. In addition, as Ms. Pietrusiak lives in Orange County, California, her deposition should be taken there as well. Morrison & Foerster has an office in f i n e that we would be happy to onake available for that purpose.

Former JLDSU Employees in Canada. You asked whether JDSU would consent to the issuance of letters rogatory for former JDSU employees in Canada. I said that we needed to check with our client, and that I would get back in touch with you. We are still checking with our client and I will report back to you as soon as we can.

Toni Mc WiZliams, David Lightfoot, Carol Ann Graves, Rick MacMillan, and 6:tephanie Franklin. During the session, I promised to follow up on the status of these witnesses. On July 14,2006, Philip Besirof sent you an email confirming that we represent these witnesses and are authorized to accept deposition subpoenas on their behalf. Philip also proposed the following deposition dates: Ms. McWilliams, August 18, in Santa Rosa, California; Mr. Lightfoot, August 29, in Ottawa, Ontario; Ms. Graves, August 30, in Ottawa; :Mr. MacMillan, August 3 1, in Ottawa; and Ms. Franklin, August 3 1, in Ottawa. Please confirm whether these dates are acceptable to you.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Four

Tom Gallagher. Since the session, we have made contact with Tom Gallagher. Morrison & Foerster now represents Mr. Gallagher, and we are authorized to accept service of a deposition subpoena on his behalf. Please direct all communications intended for Mr. Gallagher to Morrison & Foerster rather than attempting to contact him directly. We will report back to you soon on Mr. Gallagher's availability for deposition d ~ n g the month of September, as you requested.

Defendants' Proposed Witnesses:

Daniel Welch and Bryan Guckavan. You confirmed during the session what you had previously reported to us: that Mr. Welch was retaining Jim Miller to represent him. Shortly after our session on July 1 1, Jon Adams informed us that Mr. Miller represented Bryan Guckavan. Based on those representations, JDSU ceased efforts to serve these witnesses with deposition subpoenas. As you know, we have since been in touch with Mr. Miller, who has informed us that he does not yet represent Mr. Welch or Mr. Guckavan. If we do not receive confmnation from Mr. Miller that he represents Mr. Welch or Mr. Guckavan by the end of the day today, we will resume efforts to serve them personally with deposition subpoenas.

John Libby, Anfhony Boncore, Jr., John Lattimer, Eric Kelly, and Robert Gallagher. Mr. Miller has confirmed that he represents each of these witnesses. As set forth above, Mr. Libby's deposition has been noticed for the evenings of August 8 and 9,2006, and we have served his counsel with a subpoena to that effect. Mr. Miller has informed us that Messrs. Boncore, Lattimer, Kelly, and Gallagher all have availability for deposition during the week of August 7, and we intend to cluster the depositions of these witnesses during that week, to the extent possible. Mr. Miller has stated that he will send us today a proposed schedule for the depositions of these witnesses. We will be in touch with you once we receive that proposed schedule to finalize deposition dates for these witnesses.

Sandra Macika and Roy Lawrence. You stated that you had spoken with Ms. Macika, and that she was considering whether to hire an attorney. You promised to report back to us on her status. You stated that Roy Lawrence 'was on vacation until last Wednesday, but that you would report back to us on his status as well. Please provide us with updates for these witnesses as soon as you have them.

All Others. You reported that, although you had made an effort to contact every witness on the witness list proposed by Defendants, you had not been able to reach any witnesses other than the ones discussed above. Please provide us with an update of your efforts to contact these witnesses.


M O R R I S O N I F O B R S T B R

Anthony J. Harwood, Esq. July 17,2006 Page Five

Confidentiality Designations

JDSU's Conzdentiality Designations. We discussed different approaches to JDSU's confidentiality designations, including Plaintiffs7 proposal that JDSU withdraw its "Confidential" designation from all documents more than five years old. I understand that this proposal is based on Plaintiffs7 belief that five years is the standard term of confidentiality protection in the industry, based on a review of certain JDSU nondisclosure agreements. Philip explained that the basis for JDSU's confidentiality designations extended beyond nondisclosure agreements, and that Plaintiffs' proposal was not acceptable for several reasons. For example, Philip explained that personal idormation of employees is entitled to protection beyond five years, and that JDSU is obligated to keep certain customer information confidential for more than five years (until 2010 for Siemens information, for example). Philip also explained that there was other information, such as information related to product quality issues and product failures, that was confidential even though it may be more than five years old.

You expressed that you were willing to explore a compromise that protected the confidential nature of this type of information, as part of a greater effort to identi9 categories of documents that could be de-designated as confidential. JDSU agreed to attempt to come up with a proposal identifj4ng categories of documents for which it would withdraw confidentiality designations, and that we would provide this proposal to you by Friday, July 21,2006. We anticipate being able to meet that deadline, and are hopeful that the parties can reach a compromise on this issue. That compromise, however, must be one that does not place the personal information of JDSU's current or former employees in the public domain, does not jeopardize information that is commercially sensitive or that could harm JDSU in the marketplace, and does not put JDSU in jeopardy of liability for revealing information that it is contractually obligated to retain in cord?dence.

You also promised to report to us about whether Plaintiffs intend to challenge the confidentiality designations of nonparties that have produced documents in response to subpoenas in this action. We look fonvard to your response on this issue.

PZaintzJjrs ' Confidentiality Designations. You stated during the session that you believed that Plaintiffs had already responded to JDSU's inquires about Plaintiffs' confidentiality designations. You promised to c o n f i i that belief or otherwise respond to JDSU7s inquiries by today. We look forward to receiving your response.

JDSU's Responses to PIaintiffs' Interrogatories and Document Demands

We spent a good deal of time discussing JDSU's supplemental responses to Plaintiffs first set of interrogatories and second set of document demands. JDSU agreed, generally, that it would provide supplemental responses, and that it would investigate the potential timing for


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Six

these supplemental responses. Although that investigation is still ongoing, JDSU proposes to provide supplemental responses on a rolling basis, rather than waiting until it has information sufficient to supplement all of the requests at once. Accordingly, JDSU proposes that it provide a "first wave" of supplemental responses by next Tuesday, July 25,2006. JDSU anticipates that this first wave would include supplemental responses to Interrogatories 7,8, 9, 10, and 11, all of which call for the identification of specified persons. JDSU expects that a second wave of supplemental responses could be provided by August 15,2006. JDSU anticipates that this second wave would at least include supplemental responses to Interrogatories 3,5, and 17. Finally, JDSU expects that a third and final wave of supplemental responses could be provided by August 3 1,2006. If it is possible to provide information sooner than these proposed deadlines, JDSU will make an effort to do so. JDSU will provide a verification for these supplemental responses upon the completion of the final wave.

We began our discussion of Plaintiffs' requests by discussing some general points about JDSU's approach to responding to those requests. First, JDSU declined to enter into an agreement permitting each side to exceed the maximum number of interrogatories permitted by the Federal Rules and confirmed that it is not withdrawing its objection that Plaintiffs have exceeded the permitted number of interrogatories. I also confirmed that JDSU is not withholding any information solely on the grounds of this objection. After some discussion, the parties agreed to re-visit this objection in the event it becomes the sole basis for JDSU's refusal to provide information. Second, the parties discussed the appropriate amount of specificity appropriate when referring to records from which information may be derived or ascertained in answer to an intemgatory. Although no concrete agreement was reached on this point, the parties generally agreed that production-number specificity was probably not required, but that something more specific than "the accounting documents" (for example) was appropriate. JDSU agreed to make a good faith effort to appropriately specify records containing requested Somation if it chooses to refer to such records in responding to certain interrogatories. Finally, Plaintiffs made clear that they are narrowing the scope of all interrogatories by withdrawing any request for information related to JDSU's FY 2002.

The parties also discussed many of Plaintiffs' specific requests. Even though JDSU has agreed to provide supplemental. responses to Plaintiffs' requests (as narrowed by Plaintiffs' July 7,2006 letter and our meet-and-confer discussions), I want to memorialize our understanding of how the scope of Plaintiffs' requests was M e r defined during our discussion. Our understandings with respect to the requests that remain outstanding are set forth below.

Interrogatory No. 1 (regarding destruction of evidence). Plaintiffs have proposed limiting this inquiry to the 67 people identified on page three of Michael Stocker's July 7,2006 letter. During our session, you made clear that Plaintiffs do not expect JDSU to interview former


M O R R I S O N F O E R S T E R I Anthony J. Hamood, Esq. July 17,2006 Page Seven

employees, but that to the extent current employees have information about any destruction of information in the files of former employees, Plaintiffs seek that information. I stated that we needed to review this interrogatory with our client in an attempt to ascertain the burden of Plaintiffs' proposed approach, but that JDSU would make a good faith effort to supplement its response to this interrogatory. JDSU anticipates being able to provide this supplemental response as part of its third wave of responses on August 3 1,2006, if not sooner.

Interrogutory No. 3 (regarding recipients of the Augusr 18, 2000 emailjPorn i%ornas Pitre). We agreed that, working with the list of 67 people that Plaintiffs provided with respect to Interrogatory No. 1, JDSU would supplement its response to this interrogatory by: (1) asking the current employees on this list and the Individual Defendants whom we represent whether they received the ernail in question before the end of the Class Period; and (2) asking the current employees on this list and the IndiGdual Defendants whom we represent whether they were aware of anyone on the Operations Committee or the Board of Directors receiving this email before the end of the Class Period. (Because Mr. Mitchell did not participate in this part of the session, he was not able to speak for Heller Ehrman's clients.) We are still investigating the appropriate timing for JDSU's supplemental response to this interrogatory, but JDSU hopes to be able to provide additional information as part of its second wave of responses on August 15,2006.

Interrogatory No. 5 (regarding computers used by certain JDSU employees). JDSU agreed to provide a supplemental response to your nmowed request seeking information about the work computers used by the Individual Defendants, the Insiders (defined by Plaintiffs to include Zita M. Cobb, Bruce D. Day, Harry Deffebach, Robert E. Enos, Joseph Ip, Fred Leonberger, John A. MacNaughton, Danny E. Pettit, Michael C. Phillips, and Cazimir Skrzypczak), and Mr. Pitre. We are still investigating the burden of identifying all the requested information (such as the server used by each person's computer), and we do not yet have a firm timetable for providing JDSU's supplemental response, although JDSU hopes to be able to provide additional information as part of its second wave of responses on August 15,2006.

Interrogatory No. 6 (regarding personal address infirmation for Messrs. Lefebvre and Moore). JDSU declines to provide personal address information for Messrs. Lefebvre and Moore. As I informed you during the session, Morrison & Foerster currentIy represents both Mr. Lefebvre and Mr. Moore, and they can be reached through communication with our fm. I also stated that, in the event that we no longer represent either Mr. Lefebvre or Mr. Moore, we would provide you with their personal address information if we were authorized to do so. Moreover, as I also pointed out during the session, Ms. LaMarr refused to divulge her personal address information during her deposition. As stated during the session, our clients should not be subject to a different standard. You said that you would give this issue more thought and let us know whether Plaintiffs intended to seek relief on this matter.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Eight

Interrogatory No. 7 (regarding 14 speczj2dpress releases). JDSU agreed to supplement its response to identify individuals involved with the press releases at issue, or to specify the records fiom which this information can be obtained (by doing more than simply identifying the production numbers of the specified releases). As stated above, JDSU proposes to provide a supplemental response to this interrogatory as part of the first wave to be provided on July 25,2006.

Interrogatory No. 8 (regardingpersons who communicated with the SEC). JDSU agreed to supplement its response to this interrogatory to identify persons involved with communicating with the SEC on behaIf of JDSU in connection to the mergers and acquisitions and goodwill write-off at issue, to the extent that information is reasonably accessible and within JDSU's custody, possession, or control. I informed you that JDSU likely would stand on its objection to providing the identities of all persons who communicated with the SEC on behalf of "OCLI, ETEK, or SDL," as requested in Mr. Stocker's July 7 letter. As stated above, JDSU proposes to provide a supplemental response to this interrogatory as part of the first wave to be provided on July 25,2006.

Interrogatory No. 9 (regarding persons involved with calculating goodwill, revenue and inventory balances). JDSU agreed to supplement its response to this interrogatory to identify persons involved with calculating goodwill, revenue, and inventory balances for JDSU's financial statements during the period at issue. I informed you that JDSU likely would stand on its objection to providing this information for every "company that JDS acquired during the class period" as requested in Mr. Stocker's July 7 letter. As stated above, JDSU proposes to provide a supplemental response to this interrogatory as part of the first wave to be provided on July 25,2006.

Interrogatory No. 10 (regarding shipping managers). JDSU agreed to supplement its response to this interrogatory to identify persons responsibIe for shipping, in two ways. First, because there were approximately three dozen JDSU "facilities" during the Class Period, JDSU agreed to provide responsive information that could be reasonably culled fiom Oracle for the Company as a whole. Second, JDSU agreed to investigate the burden of providing additional information for the six primary sites at issue in the litigation (i. e. , Bloomfield, Horsham, W . Trenton, Ottawa, Santa Rosa, and San Jose), and to make an effort to provide additional information regarding those sites. As stated above, JDSU proposes to provide a supplemental response to this interrogatory as part of the first wave to be provided on July 25,2006.

Interrogato ry No. I 1 (regarding inventory managers). As we discussed, this interrogatory may pose particular challenges and burdens because "inventory manager" does not appear to be a standard title (or a derivation of a standard title) used for JDSU employees during the class period. Our investigation into the precise burdens involved in identifying those persons is still ongoing. At the same time, JDSU agreed to make an effort to supplement its response


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Nine

to this interrogatory to the extent that it is reasonably able and that, if necessary, the Company would describe the burden involved in providing a M e r response. As stated above, JDSU proposes to provide a supplemental response to this interrogatory as part of the first wave to be provided on July 25,2006.

Interrogatory No. 12 (regarding cancelled orders). JDSU agreed to supplement its response to this interrogatory. We also agreed that each party would talk to their experts to try to determine a mutually convenient time for the parties' experts to discuss how best to examine the restored ERP systems, as directed by the Court's June 14,2006 Order. We look forward to receiving proposed dates that work for Plaintiffs' expert. I note that Plaintiffs continue to challenge JDSU's use of Deloitte as an expert in this matter, and the resolution of that challenge will be required before Deloitte can be made available to confer with Plaintiffs' expert on this issue.

Interrogatory No. 13 (regarding shipments to cancelled orders). JDSU agreed to supplement its response to this interrogatory. I informed you, however, that just because a customer of JDSU attempted to cancel an order did not mean that the order was cancelled, and that JDSU maintained (and enforced) contractual rights to require payment for products ordered by its customers, whether or not the customers may have attempted to cancel shipment. You clarified that Plaintiffs were seeking information about shipments made to customers in instances where the customers previously had requested that the order be cancelled, whether or not JDSU agreed-that the order was properly cancelled as a matter of contract. I stated that I did not know whether JDSU tracked (or even had the means to track) this information, but that the Company would provide a supplemental response answering this interrogatory.

Interrogatory No. 14 (regarding retzirnedproducfs). JDSU agreed to supplement its response to this interrogatory. I informed you, however, that certain of the information sought by this interrogatory may be more readily available on a yearly, rather than a quarterly, basis. I also stated that JDSU's response probably would specify categories of documents from which the requested information could be obtained. Although Plaintiffs are not demanding production-number specificity for such records, you requested that JDSU provide more specificity than "accounting documents," which JDSU agreed to do.

Interrogatory Nos. IS, 16, and 18 (regarding shipments to non-existent orders, shipments where customers refused to take delivery, and total amount offinished gooh in inventory). JDSU agreed to supplement its responses to these interrogatories and to identify the burden involved in providing further responses, as appropriate.

Interrogatory No. 17 (regarding sales made on consignment with unrestricted right of return). JDSU agreed to supplement its response to this interrogatory. I pointed out, however, that we had reviewed the consignment arrangements between JDSU and its two largest customers (Lucent and Nortel) and that our review confirmed that those customers


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Ten

had no unrestricted right of return. I also stated that we did not know how many (if any) additional customers had consignment arrangements with JDSU, and that it could be unduly burdensome to review every consignment sale made by JDSU during the relevant period to respond to this interrogatory. I suggested that JDSU might propose a "materiality threshold" (e.g., limiting our investigation to sales greater than a specified dollar amount), depending on the nature of the burden that may be involved in responding to this interrogatory. We are still investigating with our client whether it makes sense to propose such a threshold. I suggest that, to the extent that JDSU determines that the burdens involved justify a threshold, it set forth that threshold as part of its supplemental response to this interrogatory. We are still investigating the appropriate timiig for JDSU's supplemental response to this interrogatory, but JDSU hopes to be able to provide additional information as part of its second wave of responses on August 15,2006.

Interrogatory No. 24 (regarding persons involved in preparing interrogatory responses). JDSU agreed to supplement its response to this interrogatory. Given the nature of the information requested, JDSU proposes that its supplemental response be part of the final wave of supplemental responses.

Document Request No. 26 (regarding communications with nun-parties). Mr. Stocker's July 7,2006, letter proposed that Plaintiffs would withdraw this request seeking communications between JDSU's counsel and any nonparty, if Defendants would agree not to seek production of communications between Plaintiffs' counsel and nonparties. We are still evaluating this proposal and will inform you about whether it is agreeable to us by the time JDSU provides its first wave of supplemental responses on July 25,2006. (I also note that we cannot speak for Mr. Kalkhoven's counsel on this issue.)

Document Request 28 (regarding software applications). Although JDSU believes that it has produced all documents responsive to this request, it agreed to search for the inventory of applications running in Ottawa mentioned by Kenneth Cameron during his August 24,2005 deposition. JDSU will inform you of the results of that search when it supplements its response to this request.

Plaintiffs' Resuonses to Mr. Muller's Interroeatories

We began our discussion of Mr. Muller's interrogatories by expressing our view that Plaintiffs' June 5,2005, responses - which consisted solely of objections - were inadequate, and that Plaintiffs should provide responsive information now in their possession and supplement their answers as they leam more through discovery. You expressed your belief that Plaintiffs should only be required to respond one time to Mr. Muller's interrogatories, and that because these were contention interrogatories, a response should be deferred until after fact discovery. We continue to disagree.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Eleven

There is no question that Plaintiffs are required to provide answers to Mr. Muller's interrogatories, and that Plaintiffs' objection that the interrogatories constitute "contention" interrogatories is no excuse for failing to respond substantively. See, e.g., Fed. R. Civ. P. 33 (providing that an "interrogatory o t h ~ s e proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact"). In addition, although a court may order that contention interrogatories need not be answered until after designated discovery has occurred, there is no rule stating that contention interrogatories are "premature and inappropriate prior to completion of discovery." Rather, the proper course is for a responding party to provide information available to it at the time the interrogatories are served, and to supplement those responses, if necessary, pursuant to Rule 26(e), as discovery progresses. Moreover, your repeated objection that providing answers now would require Plaintiffs to "comb through the entire record twice" overstates Plaintiffs' burden: in order to supplement its interrogatory responses, Plaintiffs would only have to review new evidence obtained after Plaintiffs' initial responses were provided.

In any event, during the session we discussed Plaintiffs' willingness to respond to specific interrogatories propounded by Mr. Muller. With respect to Interrogatory 1, which asks Plaintiffs to identify each transaction for which Plaintiffs contend that JDSU improperly recognized revenue, you stated that Plaintiffs were not in a position to identify a single transaction at this time. I expressed our surprise that Plaintiffs would be in this position, given Plaintiffs' four-year old allegations about JDSU's revenue recognition and the subsequent production of millions of pages of documents for Plaintiffs' review, including the production of Ernst & Young's workpapers over seven months ago. I pointed out that Plaintiffs will have the burden of proof on this issue and that we expected a response well before the close of discovery. You stated that Plaintiffs were not now in a position to let us know when Plaintiffs would respond to this Interrogatory, but that you suspected that Plaintiffs might be able to provide a response after certain depositions had taken place. You stated that you were simiIarly unprepared during our session to provide a timeframe by which Plaintiffs would provide answers to Interrogatories 2-4, which relate to the transactions called for by Interrogatory No. 1. We asked that you consider Plaintiffs' view as to the appropriate timing for responding to these interrogatories, and you agreed to communicate that view to us by today. As I expressed to you, however, even if we accepted your view that contention interrogatories need not be answered until the close of fact discovery (and we do not), Plaintiffs' responses should be provided sufficiently in advance of the summary judgment deadline to permit those responses to be considered as part of the summary judgment record.

We also discussed Interrogatory 5, which asks Plaintiffs to identify each statement by Defendants that Plaintiffs contend misrepresented JDSU's revenues. Although you stated that Plaintiffs could now identifjl certain of these statements, you said that Plaintiffs were not


M O R R I S O N I F O E R S T E R

Anthony J. Harwood, Esq. July 17,2006 Page Twelve

willing to do so in response to Interrogatory 5 at this time. You were,also unwilling to commit to a time by which Plaintiffs would provide a response to this interrogatory, or to Interrogatories 6-9, which relate to the statements called for by Interrogatory 5. You agreed to consider the issue of timing, and that you would let us know by today when Plaintiffs would be willing to provide responses to these interrogatories.

We also generally discussed Interrogatories 10-14 (which relate to statements by which Plaintiffs contend Defendants misrepresented the value of JDSU's inventory) and Interrogatories 15- 19 (which relate to statements by which Plaintiffs contend Defendants misrepresented the value of JDSU's goodwill). As was the case with the previous interrogatories discussed, you stated that Plaintiffs did not intend to provide answers to these interrogatories at this point in time and that you were not in a position to give a time by which Plaintiffs would respond to these interrogatories. Given Plaintiffs' representations that they spent hundreds of hours investigating their claims before discovery began, and in light of the tremendous amount of discovery that since taken place, including the substantial completion of JDSU's document production (which consists of millions of pages), and the production of documents by many nonparties (including JDSU's auditors and many of its customers), I would expect that Plaintiffs could now identify at least some of the statements by which Plaintiffs allege Defendants misrepresented the value of JDSU's inventory and goodwill. I asked you to provide us with a date by which Plaintiffs would be willing to respond to these interrogatories.

You did agree that Plaintiffs would provide answers to Interrogatories 20,22, and 24, which ask whether Plaintiffs contend that they suffered losses as a result of misstatements related to JDSU's revenue, inventories, and goodwill, respectively. You also committed to reviewing Interrogatories 21,23, and 25 and considering whether you would also now provide responses to those interrogatories, which inquire about the factual support for Plaintiffs' responses to Interrogatories 20,22, and 24. You told us that you would let us know whether (and when) Plaintiffs would provide responses to these interrogatories by today.

Email Attachments

On May 24,2006, you identified numerous email produced by JDSU that appeared to be missing attachments. You identified a number of these as priority email that you wanted us to investigate first. On June 22,2006, Philip sent you a letter identifying the email on your priority list that either did not have attachments or had been produced previously with all attachments. JDSU also produced all missing attachments (in PDF format with load files and in native format) for the remaining email on your priority list. During our session, you asked about our progress in identifying and producing the non-priority attachments listed in your May 24 letter. Philip informed you that in the course of our ongoing investigation into the list you provided, we had discovered numerous instances where it appears that JDSU had already produced the attachments at issue, in sequential bates numbers with the parent email.


M O R R I S O N I F O E R S T E R

Anthony J. Harwood, Esq. July 17,2006 Page Thirteen

Philip promised to write you a letter identifying specific examples where this appears to be the case. You said that you would investigate the issue further once you received that letter. We anticipate having that letter to you no later than Friday, July 21,2006. Once we receive your response, we will be in a better position to appreciate the scope of missing attachments and will be able to provide you with a time estimate for producing any missing attachments from your list.

In response to your request that all missing email attachments that constitute graphs, spreadsheets or charts be produced in native format, Philip reminded you of Judge Laporte's view that asking for "all" spreadsheets, charts, and graphs to be produced in native format is unreasonable. Philip asked you to articulate your reason for requesting these particular email attachments in native format. You responded by stating that Plaintiffs would accept the missing attachments in TIFF format with metadata, and that JDSU could elect whether or not it would also produce them in native format. Philip reminded you that because JDSU's vendor does not have the capability of producing in native format, it is impractical for JDSU to do so and that it likely would produce any missing attachments with TIFF images and metadata only.

Status of Plaintiffs' Production and Privilege Logs

Given Plaintiffs' recent production of documents on behalf of Michael Freeman, the June 20, 2006, production of a privilege log for "additional privileged documents," and the July 10, 2006, production of additional documents fiom Ms. LaMm, Philip asked for confiation about the state of Plaintiffs' document production. You assured us that you were "as certain as you could be" that Plaintiffs had now produced all documents responsive to the defendants' document demands that are in Plaintiffs' custody, possession, or control.

You also stated that the documents just produced fiom Ms. LaMarr only recentIy came into your possession. You explained that these documents were not produced following Plaintiffs' earlier search for responsive documents because of some misunderstanding about the importance of the 90-day look-back period. I do not understand how the importance of the 90-day look-back period could have been overlooked by Plaintiffs (or Ms. LaMarr) until now. In fact, Plaintiffs discussed the relevance and operation of the 90-day look-back period in their motion for appointment as lead plaintiff in this action, which was filed more than four years ago. Ms. LaMm filed a certificate in suppoi? of that motion. Given this fact, I cannot understand how documents related to the 90-day look-back period would not have been collected as part of Plaintiffs' initial search for responsive documents. I trust that Plaintiffs have now searched for any other documents that may have been overlooked because of some misunderstanding about the importance of the 90-day look-back period, and that Plaintiffs have no hther responsive documents to produce. If that understanding is incorrect, please let us know immediately.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. July 17,2006 Page Fourteen

You also agreed to supplement Plaintiffs' June 20,2006, privilege log, which did not sufficiently describe the basis for withholding the described documents. You promised to provide this supplemental privilege log by today. We look forward to receiving it.

JDSU's Privilege and Redaction Logs

The parties exchanged correspondence related to JDSU's privilege assertions shortly before our session on July 1 1,2006. You did not, however, have an opportunity to review Philip's June 10,2006, letter addressing this issue before our meet-and-confer session. For that reason, although Philip went through the content of that letter and was prepared to address a11 outstanding privilege issues that the letter did not address, you requested that we draft another letter to address the outstanding issues. We agreed to do that, and said that we expected to have that letter to you by Friday, July 21,2006. We anticipate being able to meet that deadline.

We also had a general discussion of a couple of specific privilege-related issues. First, Philip informed you that we were in the process of fmalizing redaction logs, and that we would give you a date by which we believed those logs would be produced. We expect to be in a position to produce those logs by the end of the month. Second, Philip assured you that JDSU was mindfid of the distinction between business and legal advice as it asserted privilege and prepared privilege logs, and that we had redacted, rather than withheld, documents where it was practical to do so. Third, with respect to the redacted JDSU Board Minutes fiom the files of Ernst & Young, you stated that you had not yet reviewed the caselaw we cited for you which holds that work-product protection survives disclosure to a company's outside auditors. Philip asked you to review that caselaw and then inform us about Plaintiffs' position on the issue. You said you would look at that caselaw and form an opinion, and we look forward to your response.

Finally, in response to your request for additional information in order to evaluate several of JDSU's privilege assertions, Philip asked how information regarding the underlying nature of the proposed transaction or contract at issue would help you evaluate the claim of privilege asserted. You suggested that by identi%ng the underlying contract or transaction at issue, you could determine whether certain of the claims of privilege were even worth challenging, but you could not articulate how this information would help you evaluate the privileged nature of the documents themselves. You promised to address this issue in your letter this week. We look forward to hearing fiom you on this matter.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. 17,2006 Page Fifteen

We look forward to receiving the information that you committed to provide to us during the session and to your responses to the additional information we have requested in this letter.

Very truly yours,

Terri Garland

cc: Howard S. Caro, Esq. Christopher Mitchell, Esq. Christopher T. Heffelfinger, Esq.


Exhibit 10


425 MARKET SlRT.IF M O R R I S O N I F O E R S T E R SAN MNC~SCO

M O R R I S O N k I'OLIRSTER 1.I.P

NBW Y O R K , S A N C H A N C I S C O , 1

CAI,II'ORNIA 94105-2482 1.0s ANGBI.l!S, P A I . 0 A L T O , S A N D t 1 ! 0 0 , W A S I I I N G T O N , U.C.

'TISI,III'HONI!: 415.268.7000 U F . N V E R , NOR'I'IIURN V I R G I N I A , O R A N G B COUNTY, S A C R A M I I N T O ,

I'ACSIMTJ,IB 415.268.7522 W A L N I I T CREI;K. C B N T U R Y CITY

September 22,2006

T ( > K Y ( l , I ,OND(?N, IbIClJING, S l I A N O f i A I , H O N G K O N G ,

Writer's Direct Contact 41 5.268.6091 [email protected]

Anthony J. Harwood, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 10017

Re: In re JDS Uniphase Corporation Securities Litigation, Master File No. 02-1 486 CW (EDL)

Dear Tony:

I write regarding upcoming depositions and to reiterate JDSU's request that Plaintiffs provide an updated schedule of the witnesses that they intend to depose in this matter.

Updated List of Witnesses Sought bv Plaintiffs for Deposition

In prior correspondence, you proposed that Plaintiffs would update their deposition list by September 18,2006. JDSU believed that there was no basis for Plaintiffs to wait until September 18 to update that list and that such delay was contrary to Judge Laporte's order. Nevertheless, although September 18 has come and gone, we still have not received Plaintiffs' updated deposition list. Plaintiffs' delay in updating their deposition list has already caused JDSU to waste resources in preparing for depositions. For example, days before the deposition of Tom Gallagher, and after JDSU had expended considerable time and effort in preparing for that deposition, Plaintiffs cancelled it.

Plaintiffs' failure to update their deposition list has also created uncertainty regarding which witnesses they intend to depose and the dates on which they seek those depositions. For example, on September 19, we received Plaintiffs' Notice of Adjournment of the deposition of Ken Crawford. JDSU does not know, however, if Plaintiffs intend to proceed with Mr. Crawford's deposition at a later date or whether they no longer intend to depose him. Please clarify your intent regarding Mr. Crawford's deposition.

We have also been hstrated by the fact that the information contained in Plaintiffs August 18 deposition list conflicts with the information provided in other written correspondence from Plaintiffs, as well as verbaI communications that we have received Erom Jon Adarns and you. For exampIe, on August 3, you represented to Judge Laporte that


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. September 22,2006 Page Two

Plaintiffs intended to depose Peter Moore. Later that same day, I wrote to inform you that Mr. Moore's name was not on Plaintiffs' list of proposed deponents. The amended deposition list provided to JDSU by Plaintiffs on August 18 also does not contain Mr. ~oore's'name. On September 18, more than 45 days after I alerted you to the absence of Mr. Moore's name on Plaintiffs' list, Jon Adams wrote to me seeking Mr. Moore's deposition.

In sum, Plaintiffs' deposition list should have been produced weeks ago. Accordingly, we once again reiterate our request that Plaintiffs update their deposition list immediately, in accordance with Judge Laporte's order.

Depositions of Dr. Straus and Messrs. Abbe and Muller

Plaintiffs have previously stated that they seek to depose Charles Abbe, Jozef Straus, and Anthony Muller in November. Each of these witnesses will make himself available for two consecutive days of testimony. Mr. Abbe is available on November 20 and 2 1 in San Francisco; Dr. Straus is available on November 27 and 28 in Ottawa; and Mr. Muller is available on November 30 and December 1 in Palo Alto. Please let us know whether those dates are agreeable to Plaintiffs.

Customer Depositions

On July 6,2006, JDSU informed Plaintiffs that it would not oppose the issuance of letters rogatory for the depositions of Ken Bradley and Tom Dorval of Nortel. JDSU reiterated its non-opposition at the meet-and-confer session of July 11 and again in a July 17 letter memorializing that conversation. Rather than file the proper documents with the Court, on August 4, Plaintiffs circulated a "stipulation," which did not provide signature blocks for defense counsel, and proposed letters rogatory for Messrs. Bradley and Dorval. What actions have Plaintiffs taken in the past six weeks to proceed with those two depositions? Have Messrs. Bradley and Dorval since agreed to be deposed voluntarily? If so, are those depositions scheduled? Please let us know the status. JDSU remains ready to file a statement of non-opposition to the extent Plaintiffs file a motion seeking the issuance of letters rogatory for those two witnesses in the same form as the Thomas Pitre letter rogatory approved by Judge Laporte.

We also have not heard Erom Plaintiffs regarding potential dates for the deposition of Jose Mejia of Nortel. Do Plaintiffs intend to proceed with that deposition? If so, please let us know the dates on which he is available as soon as possible.

Finally, please let us know whether Plaintiffs intend to depose Corvis and Cisco, and if so, what steps they have taken to schedule those depositions.


M O R R I S O N F O E R S T E R

Anthony J. Harwood, Esq. September 22,2006 Page Three

Depositions During the Week of September 25

This confirms that there are thee depositions currently set for the week of September 25. Anthony Boncore's deposition will be held on September 27, at the Bradley Airport; Steve Moore's deposition will be held on September 28 and 29, in Palo Alto; and Ashok Chandran's deposition will proceed on September 29, in Palo Alto.

Depositions Requiring Confirmation

JDSU is still waiting to hear back fiom Plaintiffs regarding dates for two additional depositions: (1) Kerry Dehority on October 20, in Palo Alto; arid (2) Connecticut's Rule 30(b)(6) deposition on October 1 1, in New York. Please confirm those depositions as soon as possible.

Deposition of Bob Russell

Plaintiffs have informed us that they seek the deposition of Bob Russell during the second half of October. As you are aware, Mr. Russell was already deposed in his capacity as the Company's Rule 30(b)(6) witness on the Redbook. Moreover, your questioning of the witness during that deposition frequently strayed from the Rule 30(b)(6) notice; nevertheless, we allowed Plaintiffs' overbroad questioning. We are surprised, therefore, that Plaintiffs again seek testimony from Mr. Russell. What are Plaintiffs' proposed topics for this deposition that were not covered in Mr. Russell's prior testimony? If JDSU were to agree to this deposition, Plaintiffs would need to agree to a narrow time limit for the deposition. JDSU would agree to two additional hours. Please respond to the questions above regarding Mr. Russell's deposition so that we may seek relief fiom Judge Laporte if necessary.

Depositions of Former JDSU Empiovees Residing in Canada

Plaintiffs have asked whether former JDSU employees Lou Greco, Kumar Visvanatha, Ileane Nolan, and Roger Miskowicz will agree to voluntarily sit for depositions in Canada. We are still in the process of contacting those ,witnesses and will provide a complete response to Plaintiffs as soon as possible. We have reached Mr. Miskowicz, who has agreed to appear voluntarily. Morrison & Foerster will represent Mr. Miskowicz in connection with his deposition and all communications intended for Mr. Miskowicz should be made through counsel.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. September 22,2006 Page Four

Very truly yours,

Philip T. Besirof

cc: Jon Adams, Esq. (by fax 212-883-7066) Howard S. Caro, Esq. (by fax 41 5-772-3887)


Exhibit 11


09 /22 /2006 1 7 : 2 8 FAX 72128180477 LABATON SUCHAROW LLP

Labaton Sucharow Direcr Dial: (212) 907-0873

Direcr Fzx: (212) 883-7074 nhnwood@abatonmeom

VXA FACSIMILE

Philip T. Dcsiro f, Bsq. Morrison & Foerstcr 425 Market Street San Franciscu, Cdifomh 941 05-2482

Re: JDS Uniphase Corporation Securities Litigation, 02-Civ.-1486 CW PBL)

This responds to your letter of today's date, Terri Crdrllstld's letter of September 7 and T c d s lerlcr of August 21,2006. 1 was unable to respond to Terri's l c t t~rs earlier bec~usc, as you know, I way out of the office for Shdcy Picmsiak's deposit& in CnLfornin from A u p r 21 thmugh August 24, and then was on vacation from August 26 through September 5,2006. When I returncd from vacation, therc were many more pressing matters in thiv case that required my attention, including briefings, disccrvq responses and depositions.

Bcfore nuning to thosc Icrtus, I want to rcmind you that you previously told us that the JDSU defendants would complctc th& document production by August 31, 2006. We asked by leccer datcd September 18,2006 rhsr you c o n h chat the docurncnt production is cornpkte. We bavc not yct reccived a response.

Terri's letters avscrt char Connecticut may be funding the legal fees of the contidential witncsscs thar JnS is deposing. That is incorrect.

- In your lcttw you state that I had promised a rcviscd wimcss list by Septembw 18,2006. That toa is incorrect. In fact, I wrote to you OR two occasions p r ~ p ~ s i t ~ g Lhat we c .~r&a~~e wimess lisrs on that date. You nwcr acccptcd that proposal, which is why we did not provide a revised list. We sre now revising our list of Jcposicion witnesses and will have it to you early next week.

You are aJso incorrect in asscrtiag that Judge Laporte utdcred us to prwide a revised witness list by Seprernber 18,2006. T have reviewed Judge Laporre's oxder of August 4,2006, which states that any patty that changes ia wimcxscs based on depositions aken shall rcvivc its witness list within one week of the depositions. Wc hzvc not made any revisions based on thc depositions wkcn co dare. All our revisions art based on our rcvicw of documents.


09 /22 /2006 17 :28 F A X 12128180477 L A B A T O N S U C H A R O W LLP

Philip T. Besirof, E Y ~ . September 22,2006 Page 2

You have asked whcrhcr wc still wish to depose Ken Cmwford. We do. Mr. Cxawford has adYiscd us that he is represenccd by counsel fox JDSU. Please confirm whether t h s is correct and, if so, propose dates in Octobcr for his deposidons.

Wc accept the dates and locauonu you proposed for the dcposidons of Charles Abbe (November 20 and 21 in San Francisco), Jozef Sttaus (November 27 and 28 in Ottawa) and Anthony Muller (November 30 nnd December 1 in Palo Alto).

Your positioil with respect to Ken Bradlcy and Tom L)orval's dcposidons i s nnt acccpable. We proposcd a stipulation that followed the form of Judgc Laporte's vrders of .August 4,2006, which granted Conncccicut's motions for letters rogatory. Thc lctrtxs rogatory thnr Judge T.aportc issued in connecrion with thar ordcr stated thnt thc witnesses appcnred co have relwanr evidence that is not otherwise obtainable. Defendants unjustifiably refused ro sign a sdpulauon relating to Messrs. Bradley and D o d which conahed that samc language, We we now trying to obtain the voluntary appearance of hnnc wirnesses and, failing that, wiU makc r moaon for lcmrs rogatory.

We note that defendant?' rcfuvd 10 stipulare to the form of ordcr thar Judge Laportc has approved for Letters rogatory k delaying thc eomplction of discovery born non-pactics located outsids che United States and i s putdng us ro unnecessary expense. If necessary, we will scck a continuance of thc discovery cutoff in order to complete rhesc deposidons that dcfendmts havc unjustifiably delayed by refusing to stipulate to the f o h of order that judge J~porte has apprwcd for letters rogatory.

We plan to proceed wirh thc dcprrsitinn oflose Mcjin. We nre in ncgotiadons wirb his counsel about dares, As soon PS we have Mr. McjiaJs availability, we will share thosc dotcs wich you.

We still intcnd to depose Corvis and Cisco, We arc attempting to negoti~rc rh& voluntary appaatance lor depositions.

We will ptocccd wich Kerry Dchority's deposition in Palo Alto on October 20.

Wc arc inquiring into thc av~ilnbiIitp of Connecucut's rcprcscr~rativcs KO conrjnut Connecticut's deposition on Octobcr 11 i r l Ncw York and will be back to you r i l l this sooil.

With respect to Bob Russell, wc disagtec with you asscraon that whcn hc appeared as representative ofJnSU under Rule 30@)(G) the questioning strayed from the ropics identified in the deposition norice. We ask that Mr. Russell bc available for a Full day of deposition tcsrimony, as is our right under lZde 30. We intend to depose him regarding his personal hlowlcdge of dcmnd fnrccashg,'growing inventory, obsolesc~ncc of inventory, invcnwry reserves and possibly other topics. Because you hnvc refused to makc him available f o ~ more than two hours, wc rcquest, punuant to Judge Laporrte's order, that Tern or Jordn~l Eth meet and confer with us ncxk week to discuss this dispute. Please lct as know when unc of them would be avdable ro do yo.

Labaton Sucharow


0 9 / 2 2 / 2 0 0 6 1 7 : 2 8 F A X 12128180477 L A B A T O N SUCHAROW LLP

Philip T. Bcuirof, Esq. September 22,2006 Page 3

'Ibank you for making MI. Mskowicx avalrble for deposition. Ploase p r d e us with dates on wlich he is availal)le for a deposition in October. By copy of this Ictm, we request thpt counsel for Mr. Kalkhoven prr~vidc dates in October on which they arc available for the depositions of Kc11 Cnwford and Koger Mhkowicz, and c o b thcir availability on Octobcr 20,2006 for the deposition of MI. Dehoiity.

hnthor; J. Hamood Of Counsel

cc: Howard Caro, Esq. Christopher Heffelfmgcx, Esq. JcfGey SquLc, Esq.

Labaton Sucharow


Exhibit 12


I 4% I!h'GXKI' f l ; I ? U X I ' hlORRISON & PORRSTRR 1.I.P

M O R R I S O N FOERSTER SAN 1;RANCISCO NI:\V YORK, S A N CR.+NC:lSCO,

CAI-II'ORNIA 94105-2482 1.0s .4NC;l<l.l<S, P.+l.t? ,AI.TC>, SAN I>IR(;O, WASHINGTON. VIC.

?I<IEPHONE: 415.268.7(MO 1)HNI'ER. NORTItRRN VIRGINIA.

OR.\NCili C:OI!NTY, SAI:HAUI!NTO. PhCSIMII,E 415.268.7522 \VAI.NI~T CRRBR, CKNTURY CITY

WWW.MOIT).COM TOKYO. LONDON, BEIJING.

SNANGH.+l, HONG LONG, SINGAPORE. BRlISSB1.S

October 4,2006 Writer's Direct Contact 415.268.6095

Barbara J. Hart, Esq. Anthony J. Harwood, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 1001 7


Dear Barbara and Tony:

I write regarding numerous outstanding discovery issues that we have raised with Plaintiffs' counsel. I understand from Tony's email of this morning that due to other pressing issues on the case, it is not aIways possible for him to provide responses as quickly as one would like. Nevertheless, Plaintiffs' counsel continue to make new requests of us, while failing to provide responses to our outstanding requests. For example, Tony found time to write to Dorothy Fernandez yesterday about confidential witness depositions, despite the press of business. Moreover, this is not the first time that Tony has cited the press of business as a reason for failing to respond to our inquiries.

While I of course understand that this litigation has been demanding and that Tony will have times when he is unavailable, we cannot have a communications blackout each time Tony is out of the office or busy with other issues on the case. I ask that the two of you confer and develop a plan to ensure that the parties are able to communicate and continue to resolve issues in Tony's absence.

To the extent there is any confusion regarding these outstanding issues, I summarize them below:

Is Connecticut's Rule 30(b)(6) witness regarding electronic document retention available for deposition on October 1 1 in New York? If not, we propose that the deposition proceed on October 18 or 19, in New York.


M O R R I S O N F O E R S T E R I Barbara J. Hart, Esq. Anthony J. Harwood, Esq. October 4,2006 Page Two

Which dates do Plaintiffs propose for the deposition of Ghazi Chaoui? Have Plaintiffs discussed any specific date ~6th the witness or witness's counsel? If so, please tell us the date@) discussed.

Which dates do Plaintiffs propose for the deposition of Frank Bollman? Have Plaintiffs discussed any specific date with the witness or witness's counsel? If so, please tell us the date(s) discussed.

Do Plaintiffs still intend to depose a witness from Cisco Systems? If so, what steps have they taken to schedule that deposition? Have Plaintiffs discussed any specific date with the witness or witness's counsel? If so, please tell us the date(s) discussed.

We await witness fees for Toni McWilIiams and Steve Moore. We allowed those depositions to proceed, absent the requisite witness fee, with the understanding that Plaintiffs would provide the fees immediately after the depositions.

Will Shepherd, Finkelman, Miller & Shah be compensated for its representation of Codidential Witnesses on a contingency fee basis dependant on the outcome of the litigation?

What specific efforts have Plaintiffs made to schedule the depositions of Tom Dorval and Ken Bradley? How do Plaintiffs plan to ensure that those depositions are concluded by the December 1 cut-off?

Do Plaintiffs accept our proposal that all parties supplement their initial disclosures by October 18,2006?

Have Plaintiffs considered our proposal regarding the allocation of time for certain customer and nonparty depositions?

Please check with your team and let me know when we may expect Plaintiffs' responses.

In addition, I understand from Tony's email of today that he is available to meet and confer regarding a second deposition of Bob Russell. I suggest that we do so on October 9 at I1 a.m. Pacific time. Given that PIaintiffs' questioning of Mr. Russell during his previous deposition strayed far outside the topic for which he served as a Rule 30(b)(6) representative, please be prepared to identify the issues that Plaintiffs did not cover then, yet seek to cover in a second deposition.


M O R R I S O N P O E R S T E R I Barbara J. Hart, Esq. Anthony J. Harwood, Esq. October 4,2006 Page Three

Very truly yours,

Teni Garland

cc: Christopher T. Heffelfinger, Esq. Howard S. Caro, Esq.


Exhibit 13



TABACCO BURT & PUCILLO 425 California Street, Suite 2025 San Francisco, California 941 04-2205 Telephone: (415) 433-3200 Facsimile: (4 15) 433-6382

Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds and Counsel for Oklahoma Firefighters Pension and Retirement System

Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker (1 79083) Jon Adams LABATON SUCHAROW & RUDOFF LLP 100 Park Avenue New York, New York 10017-5563 Telephone: (2 12) 907-0700 Facsimile: (2 12) 8 1 8-0477

RECEIVED

JUL 0 3 2006

TWBl

Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Tmst Funds

I I [Additional counsel listed on signature page]

I I UNITED STATES DISTRICT COURT

I I NORTHERN DISTRICT OF CALIFORNIA

I I , OAKLAND DIVISION

IN RE JDS UNIPHASE CORPORATION ) Master File No. C 02-1486 CW SECURITIES LITIGATION 1

) LEAD PLAINj'IFF'S NOTICE OF MOTION ) AND MOTION-FOR LETTERS ROGATORY ) SEEKING JUDICIAL ASSISTANCE IN ) COMPELLING MAURICE TAVARES, ) GORDON BUCHAN, AND MARIO LEDUC ) TO GIVE TESTIMONY AND PRODUCE ) DOCUMENTS \ 1 ) Date: August 8,2006 ) Time: 9:00 a.m. ) Ctrm: E, 15th Floor ) Before: Hon. Elizabeth D. Laporte

MEMO. OF I' & A IN SUPP. OF LEAD PLTF'S MOT. FOR LElTERS ROGATORY Master FileNo. C 02-1486 CW


NOTICE OF MOTION AND MOTION FOR LETTERS ROGATORY

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on August 8,2006, at 9:00 a.m., or as soon thereafter as

the matter may be heard, in the Courtroom of the Honorable Elizabeth D. Laporte, United States

Magistrate Judge, 450 Golden Gate Avenue, San Francisco, CA., 94102, Lead Plaintiff, the

Connecticut Retirement Plans and Tmst Fmds ("Connecticut"), will, and hereby does request,

pursuant to Rule 28 of the Federal Rule of Civil Procedure, that this Court issue Letters Rogator

to the Superior Court of the Province of Ontario, Canada to compel Maurice Tavares, Gordon

Buchan, and Mario Leduc to testifl at deposition and produce documents.

This motion is based upon the Declaration of Anthony J. Harwood ("Harwood Decl."),

the exhibits annexed to the Harwood Declaration ("Ex. -"), the files, records and proceedings

herein, and other such matters and argument as the Court may consider in the hearing of this

motion.

I I MEMO. OF P & A M SUPP. OF LEAD PLTF'S MOT. FOR L E ~ E R S ROGATORY Master FileNo. C 02-1486 CW


MEMORANDUM OF POINTS AND AUTHORITIlES

I. STATEMENT OF ISSUES TO BE DECIDED

Connecticut brings this motion to obtain letters rogatory seeking judicial assistance fiom

the Superior COW of the Province of Ontario, Canada, in compelling Maurice Tavares, Gordon

Buchan, and Mario Leduc to testifjr at deposition and to produce documents.

As discussed below, letters rogatory are the accepted procedure for obtaining evidence

fi-om witnesses residing in Canada. This Court has already granted letters rogatory for assistance

in obtaining evidence from Thomas Pitre based on documents that demonstrated that he and

other executives at JDS knew of declining demand for JDS7s products long before JDS and the

individual defendants disclosed that to the public.

The witnesses at issue in this motion are more senior executives who communicated

directly with the individual defendants and their chief lieutenants not only about declining

demand, but also rising inventory and falling revenues. Afeer receiving these communications,

the individual defendants made public statements on behalf of JDS falsely claiming that demand

was strong, that inventories were not building and that revenue was growing. In addition, after

leaming of JDS's decIining prospects fiom these witnesses, the individual defendants sold

hundreds of millions of dollars of stock while falsely denying that JDS faced any financial

problems. The issuance of letters rogatory is therefore appropriate to allow Connecticut the

opportunity to take evidence from these crucial witnesses.

11. STATEMENT OF FACTS

A. The Nature of the Case

Connecticut has brought this case as a class action on behalf of all investors who acquirec

the securities of defendant JDS Uniphase Corporation ("JDS") at a time when the defendants

were grossly misrepresenting JDS's financial condition to the public. Declaration of Anthony J.

Hatwood ("Harwood Decl."), dated June 30,2006,7 6. Although the defendants knew that

demand for JDS's products was declining, that its goodwill was wildly inflated and that its

inventory of obsolete products was building, JDS's senior executives hid this information and

issued rosy pronouncements that projected demand for its products was strong. Id. In addition,

I I MEMO. OF P & A IN SUPP. OF LEAD PLTF'S MOT. FOR LEITERS ROGATORY Master File No. C 02-1486 CW

2


JDS improperly recognized revenue in violation of Generally Accepted Accounting Principles to

help hide JDS's financial condition. Id. When the stock was near its peak, the individual

defendants, who were JDS's most senior executives, unloaded massive amounts of their

overvalued stock on unsuspecting investors, reaping hundreds of millions of dollars in profit.

JDS also profited fiom the h u d , using its inflated stock to purchase three other companies for

less than their fair value. Td, When JDS could no longer keep the truth hidden, it finally

disclosed that it had to write off $44.8 billion dollars in goodwill and $270 million in inventory,

and that demand for its products had fdlen dramatically. Id. These disclosures caused its stock

to collapse, leaving the investors with billions of dollars in losses. Id.

B. KnowIed~e of the Three Pro~osed Witnesses

The three witnesses whom Lead Plaintiff seeks to depose are no longer employed by

IDS. Each of them is believed to live and work in Ontario, Canada, and none is a United States

citizen. Counsel for Connecticut has been unable to date to obtain the agreement of any of the

three to cooperate as a witness. Harwood Decl. at 7 5. Each has information critical to

Connecticut's prosecution of this litigation.

1. Maurice Tavares

During the Class Period, Tavares was the President of the Fiber Optic Products Group

("FPG"), which was JDS's largest division, accounting for approximately two-thirds of its

revenue. Ex.1 (JDSU 0912955-09 12971 at 09 12957). Ex. 2 (JDSU 092971 3-0929751 at

3929716,0929745). Tavares also was a member of JDS's Operating Committee, which was

:haired by defendant Jay Abbe, JDS's President, and which defendants Straus and Muller

attended. In these weekly meetings, and by email, Tavares was in fi-equent communication with

the individual defendants. Throughout 2000 and 2001, while JDS and the individual defendants

were publicly stating that demand was strong and inventory was low, and while the individual

Jefendants were selling hundreds of rniIlions of dollars worth of their personal holdings in JDS,

internal communications among Tavares, the individual defendants and others, told a different

story of mounting inventory and declining demand.

MEMO. OF P & A JN SUPP. OF LEAD PLTF'S MOT. FOR LETTERS ROGATORY Master File No. C 02-1486 CW

3


Tavares received Muller's email of March 15,2000, which Abbe, Kalkhoven and Straus

also received, warning JDS's top executives that:

our inventories have been growing faster than sales. This is a real problem and we must get our inventory turns back into line at 4.5 turns annualized. At the end of February our three month moving average for turns was only 3.45.

Ex. 3 (JDSU 091 8137).

While inventories were growing, demand was declining. On June 8,2000, Tavares sent

an email to defendants Straus, MuIler, and Abbe reporting "a 40% drop in forecasted demand"

from Nortel, one of JDS's largest customers, amounting to "$42 million." Ex. 4 (JDSU

0930138). This email also noted that JDS had accumulated inventory in Nortel's products alone

in the amount of $25.4 million.

There was bad news from Lucent too, another leading customer of JDS. On July 20,

2000, Tavares, Straus, Abbe and others met with senior executives at Lucent. Ex. 5 (JDSU

09 19354). During the meeting, Lucent said it faced a "life or death" situation and demanded a

huge price reduction from JDS. Ex. 6 (JDSU 0926686 - 0926688 at 0926688).

On July 28,2000, Tavares, Straus, Abbe and others received an analysis of the financial

impact of this price reduction in an email fiom Gordan Buchan, JDS's Vice President of

Business Development:

Where the 400G OA [optical. Amplifier] price drops to $1 5,000 as Lucent has asked for (they asked for it to go to $12k to 15k range), this takes a $1 00M off our top and bottom lines. Overall GM drops to 29%, with the 400G OA GM dropping to 8.6%. The $1 OOM represents about 11.5% overall price reduction on our FY 2001 business.

Ex. 7 (JDSU 0925584) (emphasis added).

By July 3 1,2000, Tavares learned that Lucent was not only insisting on a price reduction

it was also reducing its purchases of the 400G OA. Ex. 8 (JDSU 0553973). This amounted to ar

additional loss of revenue in the amount of $52.4 million. Id

On Monday, August 1, within days of these emails and one day after JDS's trading

window opened, Straus sold $122 million worth of JDS stock. Straus sold an additional $53

MEMO. OF P & A IN SUPP. OF LEAD PLTF'S MOT. FOR LETTERS ROGATORY Master File No. C 02-1486 CW


million within the next week. Defendants Abbe, Muller and Kalkhoven all sold millions of

dollars of JDS shares in this same period. Within a week of the email, the individual defendants

sold approximately $295 miIlion in JDS shares. SAC 7 313.

The situation continued to deteriorate throughout the summer. On August 2,2000,

Tavares reported to Abbe and Straus that Lucent, which at the time was JDS's largest customer,

had decreased its demand by 3040% for the 400G Wavestar product, which resulted in a

revenue shortfa11 for JDS in the amount of $95.6 million. Ex. 9 (JDSU 1 138450 - 1 138451 at

1 138450). Also on August 2, Tavares wrote to Abbe and Straus:

Received call fi-om JR Newland [of Lucent], August 1, with update that Lucent was pursuing a "new program pushing the demand curve out" that will impact their 4 4 (ends Sept.) and FY 2001. It appears that Lucent can not source sufficient Transmission modules to match up with supply on other material required for their 10 Gigabit system initiative. Customers are not prepared to continue with 2.5 Gigabit deployment until the 10 Gig offering is available. JR sized the impact at 30 to 40% starting in the current quarter and committed to a follow up call early next week to provide further updates.

As compared to the 1 st 4 weeks of the previous quarter, Nortel's 100GHz pull has dropped from $17 m to $7m with a subsequent increase in on hand inventory to $26m (vs. contractual commit at 4 weeks x forecasted demand or $14m). With Etek's 100 GHz qualification, Nortel's pull rate, already below plan, has been reduced to 75% of the previous level.

Ex. 10 (JDSU 0931268-093 1269) (emphasis added).

The situation became more dire later in the month. As Tavares reported to defendants

Straw and Abbe in an email dated August 10,2000, "Lucent's current view as of August 9th

reflects M e r deterioration in 42. . . ." Ex. 1 1 (JDSU 091 8466).

By August 21,2000, Tavares's FPG Division was projecting that over the next twelve

nonths, its revenues would decline by $532,209,036, a reduction of 14% as compared to the

:evenues projected in the forecast from July. Ex. 12 (JDSU 1 130251-1 130263). Of this total,

MEMO. OF f & A IN SUPP. OF LEAD PLTF'S MOT. FOR LETTERS ROGATORY Master File No. C 02-1486 CW

5


$405,737,724 was attributed to Lucent, $43,451,579 to Nortel, $41,345,469 to Marconi, and

$25,817,862 to Corning, with the balance attributed to an assortment of other customers. Id.

Subsequently, on October 16,2000, Tavares's FPG Division posted a new forecast,

which showed an additional 1 1% reduction in revenues. Ex. 13 (JDSU 1130278 - 1 130287).

Yet just 10 days later, during a conference call with analysts on October 26,2000, defendant

Abbe said: "We do not see double bookings nor do we see systemic trends in changes in the sizt

of orders andlor forecasts being shared with us by our customers." SAC 7 254. During the

same conference call, Straus stated, "demand is strong and will continue to grow." SAC 7255.

Moreover, although revenue projections for FPG had declined substantially since JDS had first

issued its guidance on earnings per share for the fiscal year, Muller stated that JDS was

increasing its guidance on earnings per share from $.70 to $.80 per share. SAC 7 258.

Although inventory was clearly building and had been for months, Straus and Abbe told

the public otherwise during the coderence call on October 26,2000. Abbe said "We do not see

indications of systematic across the board component or module inventory builds either at our

customers or in our own shops." SAC f 254. Similarly, Straus said that JDS was in constant

contact with its customers and did "not see any inventory buildup at customers." Id. Yet on this

very same day, JDS met with Lucent and learned that Lucent was having inventory problems tha

caused Lucent to lower its demand for JDS's products. Ex. 14 (JDSU 0567391-0567394).

Tavares, who was directly communicating negative financial information to the

defendants, can testify both to the falsity of the defendants7 statements and their knowledge of

that falsehood. This makes him a critical witness.

2. Mario Leduc

Mario Leduc was the Vice President of Supply Chain Management, reporting to Tavares,

the President of FPG. Ex. 15 (JDSU 01 77993-01 78033 at 0 177996). As Vice President of

Supply Chain Management, Leduc was charged with balancing customer demand against supply

and communicating that up the corporate hierarchy. Ex. 16 (JDSU 0423640-0423648 at

0423641,0423644). In this critical role at JDS's most important division, he recognized early

signs of the impending crisis of decIining demand and rising inventory. He communicated these


6


problems to Straus, Tavares and to other senior executives who reported directly to Straus and

I I the other individual defendants.

I I One of the critical tools that FPG used to assess whether supply and demand were in

I I balance was the Redbook. Leduc developed the Redbook and hired Thomas Pitre as Demand

I I Manager to oversee the Redbook process. Ex. 17 (Russell Dep. at 29.) Leduc, along with

I 1 Tavares, Straus and others, was involved in reviewing and approving the Redbook. Ex. 17

11 (Russell Dep. at 64.); Ex. 18 (JDSU 0025804).

I I In an email dated August 18,2000, during the preparation of the Redbook, Pitre alerted

Leduc and others to an alarming decline in demand from JDSU's two leading customers -

I I Lucent and Nortel - as well as others. Pitre's email stated:

Our weekly Thursday Redbook Meeting proved to be an enlightening experience. Considering all the recent demand changes over the past few weekr, we are still on track to finish the Redbook submission prior to the quarter end. The forecasting group has committed to publishing a "revised forecast," first thing Monday. This "revised forecast" will have changes relating to the Nortel and Lucent changes, as well as others.

I have noticed that through various conversations with Redbook folks that a major disconnect exists between fitwe forecasted demand and our growth curve. It seems that we have a divergence between our overarching growth of 25% QTRIQTR and the forecast demand out in 43 and 44. So statedplainly the forecast out in Q3 and Q4 is substantially less than our projected growth curve. It is a foregone conclusion that given the market[']s need for bandwidth, we will experience the 25% QTRlQTR growth. The importance of identifying all sources of demand cannot be overemphasized. . . . The forecasting department is now addressing the above, and hopes to capture a more accurate statement of demand in Mondays "revised forecast."

I I Ex. 19 (JDSU 035091 8-03509 19) (emphasis added). Pitre sent this email to OPSS, among

I I others, a distribution list that included Leduc. Ex. 20 (Defs.' Supp. Interrogatory Resp. dated

I I When Monday's revised forecast was issued, after defendants had located "all sources of

I I demand," there was no room for doubt about the gloomy prospects for Q3 and Q4 of fiscal year

MEMO. OF P &A IN SUPP. OF LEAD RTF'S MOT. FOR LEITERS ROGATORY Master File No. C 02-1486 CW

7


2001 (January through June 2001). As detailed above, the "revised forecast" dated August 21,

2000 projected that over the next twelve months, FPG's revenues would decline by

$532,209,036, a reduction of 14% as compared to the revenues projected in the forecast fiom

July. Ex. 12 (JDSU 1 13025 1-1 130263); supra p. 5.

Leduc also had knowledge of the declining demand for JDS's products independent of

Pitre's email. As early as November 4,1999, Leduc knew that Nortel's forecasts were "flat"

beyond June of cdendar year 2000. Ex. 21 (JDSU 0387861). By March 23,2000, JDS issued a

new forecast for Lucent's purchases of the Metropoint product. It revealed a "65% reduction in

forecast over the next 6 months." Ex. 22 (JDSU 0349075 - 0340980). The following week,

after JDS made adjustments to its internal forecasts to account for Lucent's starkly lower

forecasts, Leduc still thought that JDS was still projecting unreasonable growth which might

drive unjustified procurement activities. Ex. 23 (JDSU 0340990-034099 1).

At the same time that Leduc became concerned about declining demand, he began to

raise the alarm with respect to growing inventory. Leduc spoke with Bruce Reinhardt, a

Materials Manager and Manager of Logistics in FPG7s Optical Amplifier ("OA") business unit.

After speaking with Leduc, Reinhardt sent an email expressing the view that JDS was "inventory

over planned" and at risk for high inventories. Ex. 24 (JDSU 0543819-0543820). Leduc and

Reinhardt focused their concerns on the second and third quarters of fiscal year 200 1 (October

2000 through March 2001). Ex. 23 (JDSU 0340990-0340991).

By May 2,2000, Leduc's concerns about declining demand and increasing inventory

began to materialize. As reflected in Leduc7s email of that date, JDS had decided to "zero" d l

forecasts of Lucent's orders for the Metropoint product, and "the planning group [was] trying to

limit any further inventory risk by canceling additional procurement activity." Ex. 25 (JDSU

0942378-0942379). Nonetheless, despite these precautionary steps, Leduc estimated that '"we

have between $7 M to $10M exposure to the inventory . . . ." Id. He cautioned, "As we

approach the end of the fiscal year, it is imperative that we understand whether this inventory

needs to be written off or at a minimum reserved against." Id.

MEMO. OF P & A IN SUPP. OF LEAD PLTF'S MOT. FOR LETTERS ROGATORY Master FileNo. C 02-1486 CW

8


Leduc participated in communications with Straus and Tavares about growing inventory

Leduc and Straus both received an email dated June 22,2000 fiom Roy Sunstsum explaining thi

JDS could not increase its orders of jumper cables fiom its supplier Furukawa, because 'kve're

suddenly sitting on lots of inventory so can't increase quantities right now." Ex. 26 (JDSU

2 136537-1 136538).

By August 2000, Eeduc knew that the situation was dire. An email dated August 2,200(

reflected that demand for OA product was down significantly and raised a "red flag" on

consignment inventory. Ex. 27 (JDSU 0529059-0529061). On August 8,2000, Leduc learned

that Lucent's demand for the Wavestar product had "dropped by 3 50%." Ex. 28 (JDSU

0554368-0554370). The continuing downward spiral in demand had its expected impact on

inventory. On August 14,2000 Leduc learned that JDS has $98 million in "excess inventory"

with various customers. Ex. 29 (JDSU 0749609-074961 1). By the end of September, a

"significant downturn in customer demand" caused inventory to build to the point that JDS coull

no longer find a place to store it. Ex. 30 (JDSU 0559268-0559271 at 0559269).

The inventory problems continued to grow until JDS ultimately wrote off $270 million ii

July 200 1. Leduc remained involved with efforts to monitor and control inventory throughout

this period. Ex. 3 1 (JDSU 0588 194 - 0588 197 at 05881 96) ("Ottawa inventory needs lots of

attention in 43. The inflated number here reflects w'star downturn and Mosaic issues."), Ex. 32

(JDSU 0301037) (Leduc requests help making $10 million of jumper cable "disappear this

quarter"), Ex. 33 (JDSU 0639921 - 0639922) (awaiting Muller's approval for an inventory

write-om.

3. Gordon Buchan

Buchan was central to JDS7s strategic decision making, client contract negotiations, and

relationship with Lucent. As Vice President of Business Development and Senior Legal

Advisor, Buchan sat on JDS7s Strategy and Business Council. Ex. 34 (JDSU 2 1 1 1844-2 1 1 1855

at 21 11855).

As discussed above, Buchan communicated directly with Straus and Abbe about the $101

million dollar price concession that Lucent demanded. Suvra p. 4. Buchan quantified the

I I MEMO. OF P & A M SUPP. OF LEAD PLTF'S MOT. FOR LETTERS RGGATORY Master File No. C 02-1486 CW

9


significant financial impact of this price concession on JDS in an email dated July 28,2000. Id.

Within approximately a week of that email, Straus sold $175 million dollars worth of JDS's

stock, and the individual defendants as a group sold $295 million. SAC 7 3 13. Buchan's

communications with Straus and Abbe regarding these events are important evidence that Straus

and Abbe knew of material, adverse financial information at the time they dumped their stock

md that JDS both misrepresented and omitted material facts about its financial condition.

111. ARGUMENT

Federal Rule of Civil Procedure 28@) sets forth the procedure for obtaining deposition

testimony from a witness in a foreign country. It provides:

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), or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United Stztes, or (4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. . . .

The proper procedure for obtaining deposition testimony and compelling the production

~f documents in Canada for use in an action in the United States is to proceed by means of a

letter rogatory. See U.S. Dep't of State, Judicial Assistance in Canada, available at

~ttp://travel.state.gov/law/info/judicial/judicial~682.html.

As shown above in the statement of facts and in the accompanying affidavit, these three

Foreign witnesses have knowledge of the company's growing problems with inventory and

lemand and communicated those problems up the corporate hierarchy, in some instances

;omrnunicating directly with the individual defendants. Therefore, the testimony of each of


10


them is highly relevant. They may also have documents in their possession related to the issues

in this case.

WHEIREFORE, Connecticut respectfully requests that the Court grant its motion and

issue letters rogatory as to each of Tavares, Leduc, and Buchan, in the form submitted herewith.

Dated: June 30,2006

Respecthlly submitted,

LABATON SUCHAROW & RUDOFF LLP

By: s/Anthonv J. Harwood Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker Jon Adams

Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds


TABACCO BURT & PUCILLO

Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds And Counsel for Intervenor Oklahoma Firefighters Pension and Retirement System

Of Counsel:

Catherine E. LaMarr General Counsel Ofice of the Treasurer of the State of Connecticut 55 Elm Street Hartford, Connecticut 06 106

Hon. Richard Blumenthal Attorney General of Connecticut Joseph Rubin Associate Attorney General 55 Elm Street Hartford, Connecticut 06 106

MEMO. OF P &A IN SUPP. OF LEAD PLTF'S MOT. FOR LETTERS ROGATORY Master File No. C 02-1486 CW 11


Exhibit 14


PROPOSED LETTER ROGATORY Master File No. C 02-1486 CW

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Joseph J. Tabacco, JR. (75484) Christopher T. Heffelfinger (118058) BERMAN DeVALERIO PEASE TABACCO BURT & PUCILLO 425 California Street, Suite 2025 San Francisco, California 94104-2205 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds and Counsel for Oklahoma Firefighters Pension and Retirement System Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker (179083) Jon Adams LABATON SUCHAROW & RUDOFF LLP 100 Park Avenue New York, New York 10017-5563 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds



OAKLAND DIVISION IN RE JDS UNIPHASE CORPORATION SECURITIES LITIGATION

))))))))) ) ) ) ) )

Master File No. C 02-1486 CW [PROPOSED] LETTER ROGATORY TO THE SUPERIOR COURT OF JUSTICE OF ONTARIO, CANADA Date: August 8, 2006 Time: 9:00 a.m. Ctrm: E, 15th Floor Before: Hon. Elizabeth D. Laporte

Case 4:02-cv-01486 Document 519 Filed 07/03/2006 Page 1 of 7Case 4:02-cv-01486 Document 559 Filed 08/04/2006 Page 1 of 7Case 4:02-cv-01486 Document 680 Filed 11/14/2006 Page 2 of 8

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TO THE SUPERIOR COURT OF JUSTICE OF ONTARIO, CANADA:

WHEREAS the captioned action is properly under the jurisdiction of and is now pending

in this Court;

WHEREAS it appears that Gordon Buchan has evidence relevant to this action which

will be adduced during the trial of this action if the evidence is admissible;

WHEREAS this evidence is not otherwise obtainable;

WHEREAS it appears necessary for the purpose of justice that Gordon Buchan, a witness

residing or otherwise doing business within your jurisdiction be examined there, with a view to

testifying, producing, authenticating and reviewing documents within his possession and control;

YOU ARE REQUESTED, in furtherance of justice, to cause the aforesaid witness to

appear by means ordinarily used in your jurisdiction to answer questions under oath or

affirmation and to bring to and produce at the examination the documents set forth in the


When you request it, this Court is ready and willing to do the same for you in a similar

case.


forth below.

Dated: July __, 2006

____________________________ United States District Judge


WHEREAS Gordon Buchan is a former in-house attorney for JDS Uniphase, and JDS Uniphase has not waived its privilege with respect to any evidence Mr. Buchan may possess;

<

August 4

UN

ITED

STATES DISTRICT COU

RT

NO

RT

H

ERN DISTRICT OF CALI

FOR

NIA

IT IS SO ORDERED

AS MODIFIED

Judge Elizabeth D. Laporte


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SCHEDULE A: Gordon Buchan

I. DEFINITIONS

1. “Board of Directors” means the Board of Directors of JDS Uniphase Corporation

and any committee thereof, including but not limited to audit committees.

2. “Financial statements” means, without limitation, balance sheets and statements

of income, earnings, retained earnings, sources and applications of funds, operations and deficit,

profit and loss, changes in financial position, and cash flows, and also includes all notes to each

of the foregoing, and any other notes that pertain to the past, present, or future financial

condition of JDS Uniphase Corporation (as defined herein). Any of the foregoing documents

constitute a financial statement whether it is audited or unaudited, or final, interim, yearly,

monthly, pro forma, complete or partial, consolidated or nonconsolidated, or otherwise.

3. “Defendants” means Defendants JDS Uniphase Corporation, Jozef Straus,

Anthony R. Muller, Charles J. Abbe, and Kevin Kalkhoven.

4. “Individual Defendants” mean Defendants Jozef Straus, Anthony R. Muller,

Charles J. Abbe, and Kevin Kalkhoven.

5. “JDS” means Defendant JDS Uniphase Corporation, its Board of Directors, each

committee of its Board of Directors, each of its subsidiaries, divisions, subdivisions, joint

ventures, parents, affiliated persons, and predecessors (including but not limited to Uniphase

Corporation and JDS FITEL, Inc.), and its present and former directors, officers, employees,


6. “Pitre E-mail” means the e-mail sent by Thomas G. Pitre to “OPSS” and others at

1:53 p.m. eastern time on August 18, 2000 concerning “(RedBook) Sales and Operations

Planning,” a copy of which is annexed to this Schedule A.

7. “Products” means any product developed, manufactured, or sold by JDS,

including but not limited to fiber-optics, semiconductor lasers, high-speed external modulators,

transmitters, amplifiers, couplers, multiplexers, circulators, tunable filters, optical switches, and

isolators for fiber-optic applications.

8. “SEC” means the United States Securities and Exchange Commission.


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9. “Communication” means the transmittal of information, in the form of facts,

ideas, inquiries or otherwise.

10. “Concerning” means relating to, referring to, describing, evidencing or

constituting.

11. “Document” is synonymous in meaning and equal in scope to the usage of this

term in Rule 34(a) of the Federal Rules of Civil Procedure, and includes: writings, drawings,

graphs, charts, photographs, phonorecords, and other data compilations from which information

can be obtained, translated, if necessary, by detection devices into reasonably usable form. E-

mails and electronic or computerized data compilations are within the meaning of this term. A

draft or non-identical copy is a separate document within the meaning of this term.

12. “Person” means any natural person or any business, legal or governmental entity

or association.

13. The terms “all” and “each” shall be construed as all and each.

14. The connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of this Request for Production all responses

that might otherwise be considered to be outside of its scope.

15. The use of the singular form of any word includes the plural and vice versa.

16. The term “you” or “your” shall mean or refer to Gordon Buchan.

17. The term “Redbook” refers to reports by that name generated by JDS’s FPG

division in an effort to balance purchases of supplies with demand from customers.

II. RELEVANT PERIOD

Unless otherwise indicated in a specific Request for Production, the Relevant Period

herein is January 1, 1999 through the date of your production of documents in response to this

request, and shall include all documents which relate to such period even though prepared,

published, sent or received, in whole or in part, prior or subsequent to this period.


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III. INSTRUCTIONS

1. In producing documents and other materials in response to this Request for

Production, you are requested to furnish all documents in your possession, custody, or control,

regardless of whether such documents are possessed directly by you or your agents, employees,

partners, representatives, subsidiaries, affiliates or investigators, or by your attorneys or their

agents, employees, or investigators.

2. All documents you produce in response to this request shall either: (a) be

organized and labeled to correspond with the number of the request to which the documents are

responsive, or (b) be produced in the order and in the manner in which you keep the documents

in the usual course of business with a designation of the file or files from which the documents

have been produced.

3. Produce each document in response to this Request for Production in its entirety,

without deletion or excision, regardless of whether you consider the entire document to be

relevant or responsive. If any requested document cannot be produced in full, produce it to the

extent possible, indicating which portion of that document is being withheld and the reason that

portion of the document is being withheld. Do not produce “redacted” documents unless you are

asserting a privilege or immunity with respect to the redacted portion.

4. If you object to any request in this Request for Production on the ground that it is

overly broad, produce documents in response to the request as narrowed to conform to your

objection and state in your response (a) how you narrowed the request, and (b) the reason why

you claim the request is overly broad.

5. If you withhold any responsive document from production pursuant to a claim of

attorney-client privilege, attorney work product doctrine, or any other privilege or immunity,

provide the following information with respect to each such document:

(a) The type of document, e.g., letter or memorandum;

(b) The actual or approximate date of the document;

(c) The author(s) of the document and any other person(s) who

prepared or participated in the preparation of the document;


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(d) A description of the subject matter and physical size (e.g., the

number of pages) of the document;

(e) All addressees and recipient(s) of the original or a copy thereof,

together with the date or approximate date on which said-

recipient(s) received the document or a copy thereof;

(f) All other persons to whom the contents of the document have been

disclosed, the date such disclosure took place, and the means of

such disclosure;

(g) The nature of the privilege or other rule of law relied upon and any

facts supporting your position; and

(h) The nature of the documents not produced or disclosed in a manner

that, without revealing information that is privileged or

confidential, will enable an assessment of the applicability of the

privilege or protection.

6. If a document responsive to the following requests has been destroyed or

discarded, identify the document as per the instructions in paragraph 5 above. If no documents

responsive to a particular document request exist or are within your possession, custody or

control, so state in your response to the request.

IV. DOCUMENTS REQUESTED

1. All documents concerning JDS’s actual and projected financial results during the

Relevant Time Period, including but not limited to documents concerning product sales, demand

for products, and documents concerning inventory, revenue, sales, earnings, and forecasts.

2. All documents concerning any meeting of JDS’s Board of Directors or of any

committee of the Board of Directors, including any minutes, agendas, notes, and any material

distributed at such meetings relating to documents described in paragraph 1.

3. All documents concerning the Pitre Email.


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4. All documents concerning the potential for or existence of a downturn in demand

for JDS products during the Relevant Time Period.

5. All documents concerning JDS’ write-down of approximately $270 million in

inventory for the quarter ended June 30, 2001, announced on or about July 26, 2001.

6. All documents concerning JDS’s excess, aging, or obsolete inventory.

7. All documents concerning JDS’s inventory turn rates.

8. All documents concerning JDS’s contracts with Lucent, Nortel, Corning,

Marconi, Cisco, and Corvis.

9. All documents concerning overshipment of JDS products, premature shipment of

JDS products, delayed deliveries of JDS products, delaying of booking orders for JDS products,

shipping products on cancelled orders, customers refusing to take delivery on agreed upon

orders, and order or contract cancellations.

10. All documents concerning any potential or actual change or restatement of JDS’

financial statements.

11. All documents concerning any communications you had with any government

agency (including the SEC) regarding JDS.

12. All documents concerning any communications between JDS’s customers and

JDS relating to demand, or product pricing.

13. Any employment, severance, or confidentiality agreements between you and JDS,

and any drafts thereof.


Exhibit 15

Exhibit 16


425 MARK~II' srwirrr M o R n I s o N k powRsTBR I.1.P

M O R R I S O N F O E R S T E R SAN iWiNCISCO Nriw Y O R K , S A W PRAN[;IS(;O,

C;AI.If ~ORNI.J\ 94105-2482 l.C>S ANGl<I,l<S. PAI,lJ 4l.TtJ.

S A N DIEGO, w . \ s l i lwc ' roN . ~ . f ; .

TI~(IJiIJFION1l: 415.268.7OllO I>liN\'KR, Nt IRl ' l l l iRN YIRGINl.4,

ORANOR I;OI'HTI'. SA(;R.\MRNTO, I'ACSIMIl,l<: 415.268.7522 WAI.NL!I' L:RI~I<P, CIIN'I'IIRY CI'I'Y

WWW.MOFO.COM TOKYO, I.ONDON, BGI I ING,

SHANGHAI. HONG KONG. SINGAPORE, BRUSSELS

August 1 1,2006 Writer's Direct Contact 415.268.6091 [email protected]

By Fax

Anthony J. Harwood, Esq. Jon Adams, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 1001 7


Dear Tony and Jon:

I write in response to Jon's August 9,2006 letter regarding deposition scheduling issues.

First, regarding Alison Reynders's deposition, we accept your representation that Plaintiffs' counsel is unavailable to depose Ms. Reynders on September 14 or 15, as JDSU had requested. If September 20 or 21 is acceptable to Ms. Reynders, we are available on those days. If Plaintiffs' counsel's schedule changes such that September 14 or 15 becomes available, we ask that you kindly inform us of that fact, so that we may cluster Ms. Reynders's deposition with other East Coast: depositions. Have Plaintiffs sewed Ms. Reynders with a subpoena?

Second, the JDSU Defendants disagrees with Plaintiffs' interpretation of Judge Laporte's order regarding the need to provide updated deposi~on lists. As Judge Laporte made clear during the August 3 hearing, PlaintiEs have already exceeded the maximum number of depositions allocated to them. Accordingly, I reiterate my requests of August 3 and 8 that Plaintiffs immediately provide an updated deposition list that complies with the Court's Iimits.


M O R R I S O N F O E R S T E R

Anthony J. Harwood, Esq. Jon Adams, Esq. August 1 1,2006 Page Two

Moreover, we disagree with Plaintiffs* reliance on paragraph 12 of the Court's August 4, 2006 order and we are surprised that Plaintiffs would take that position. At the August 3 hearing, JDSU indicated that when new witnesses came to light in depositions, it would be able to supplement its deposition list the following week -thus leading to paragraph 12 in the order.

In contrast, on August 3, Plaintiffs stated that they were reevaluating whether to proceed with the financial institution depositions. Although it seems that Plaintiffs have already made a decision in that regard, they have not updated their deposition list. As we have told you repeatedly, JDSU seeks to move forward expeditiously with depositions and to conclude the discovery process within the tirneframe imposed by the Court. Plaintiffs' recaIcitrance in sharing information regarding the depositions they intend to take serves only to undermine those goals. Accordingly, we reiterate our request that Plaintiffs immediately amend their deposition list.

Very truly yours,

Philip T. Besirof

cc: Howard S. Caro, Esq.


Exhibit 17


425 MARKET SIREBI' M O R R I S O N F O E R S T E R SAN FRANCISCO

CALIFORNIA 94105-2482

'I'ELEPHONI:,: 415.268.7000 FACSIMILE: 415.268.7522

October 6,2006

MORRISON L I:OERSTI?R L1.P

NRW VORK, SAN FIANCISC(1,

LOS ANGGLL'.S, PAl.0 A1.1'0. SAN DIEGO, WASIIINGTON. O.C.

DENVER, NORTHBRN VIRGINIA. ORANGE COLIN'rY, SACRAMI{NfO. WAI.NIJT CUI!I:K, CI!NTIIRY CITY

Writer's Direct Contact 41 5.268.6091 [email protected]

By Fax

Jon Adams, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 1001 7

Re: In re JDS Uniphase Securities Litigation, Master File No. 02-1486 CW @DL)

Dear Jon:

I write in response to your October 4,2006 letter and your email of today regarding Plaintiffs' desire to depose certain former JDSU employees in Canada. Most of the issues raised in your letter were addressed in my October 4 letter to Tony Hanvood.

I write specifically to correct your characterization that the JDSU Defendants have the ability to 'make [those witnesses] available" for deposition The JDSU Defendants do not control those persons and do not havethe ability to make them available for deposition. Rather, we are in the process of asking those persons whether they will consent to voluntarily sit for depositions. As we have informed Plaintiffs on numerous occasions, given the approaching deposition cut-off, we urge Plaintiffs to proceed independently in their efforts to depose those persons.

Sincerely,

&& Philip T. Besirof

cc: Howard S. Caro, Esq. Christopher T. Heffelfinger, Esq.


Exhibit 18


425 MARKKI' SIWPR' M L I R R J S ~ N s I'OI%RS'l'l?K 1.1.1'

M O R R ' I S O N F O E R S T E R SAN I ~ N C I S C O N E W YIIRK. $AN I:RANI:IS~:ll,

CAIlFQRNlA 941 05-2482 1.0s ANOI?I.IB. PAIS) AI:~II. SAN I>IAGO, WASIIINOI'ON, I1.C.

1TUPHoNI?: 415.268.7000 DRNVIIR, NORTIIBRN VIRGINIA, ORANCI? COIINTY, SACRAMI!N'I'O.

FAcSIbfILI%: 425.268.7522 WALNUT CRBG:K, CItNTLIRY CITY

WWW.MOFO.COM TOKYO, LONDON, BRIJING. SHANGllAl. I IONG KONC, SINGIIPORB, BRUSJ81.S

October 13,2006 Writer's Direct Contact 41 5.268.6091 [email protected]

By Fax (2 12-8 18-0477)

Jon Adams, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 100 1 7

Re: In re JDS Uniphase Securities Litigation, Master FiIe No. 02-1486 CW (EDL)

'Dear Jon:

I write in response to your email of today regarding Peter Moore's deposition. I was surprised that you would ask whether JDSU would "make Peter Moore available for deposition." As I stated in my October 6 letter to you, JDSU does not control its former employees and cannot make them available unilaterally for depositions. Moreover, I am unaware of any "guidelines" established by Judge Lapode making JDSU responsible for producing its former employees for depositions, especially those living abroad.

To date, we have been unsuccessfitl in our efforts to reach Mr. Moore regarding his deposition. As I have informed Plaintiffsy counsel repeatedly and unequivocally on many occasions, however, given the approaching deposition cut-off, we urge Plaintiffs to proceed independently in their efforts to depose any former JDSU employees contained on Plaintiffs' deposition list. Given the December 1,2006 discovery cut-off, we cannot understand Plaintiffs' continued delay.

Sincerely,

Philip T. Besirof

cc: Howard S. Caro, Esq. Anthony J. Harwood, Esq.


Exhibit 19


11/10/2006 20:33 F A X 12128180477 LABATON SUCHARUW LLP

Labaton Sucharaw

VIA FACSIMILE

Philip 7. Hcsirof, li,sq. Morrison & Ftbcrsrcr 425 Marker Srrt!er San Fmncisco, California 94 105-2482

Atfilchcd is our updstcd witness List. It includcs a 1 depositions tnkcn to dare as well as those we conrcmpla~c mking. Consistc~~t Jtirh Judge T.apcrrtc's otdct, h e roral numbcr of wirnesscs i~ 55.

We nre no lonpc uccking drposidono ftom Richard Frick, Stcvc Almassy, Brian Cover, Tom Dental, I;~-ank B o h a n and Bbamberg. In addtion, as we discussed ycutcrday, wc would agree nor to rakt rhc dcpc)sirioas of lleanc Nolan and Lou Gxeco if dc€cndanes will agee tc) cxend the k c to bke rcsrimorly Eroizi d ~ e following Canadian wimcssca: Thomas Picre, Gordon Buchan and one formcr Norrcl cmploycc (either Ken B~tcllcy or Cinxin Cunco).

We undenmnci your clcsirc nor to wee to an open ended cxtcnxion, so we proposed that wc extend che timc tc) complete thosc cicpositions until: (a) no lercr than 45 days nficr .ucrvice of the order of a i:anactian Court compcllu~g chose wit~~csses to tcsafy, or. @) n A p d 2,2007, without prejudice to our right to seck an additional cxtcnsior~ if necessary and without prejudice to defendants' ught to opposc that exrension.

Wir~~csses 49 through 54 on oiil. lisr art: formcr employees of JDSU and number 55 is a wimcss tc> rrsufj on bchalf ofJDSLI rcgardin): invcrrtr,ry pursuant to Rule 30@)(6). Please let rnc know whcthujDS will arrange €or chose wimcsscs to give dgositions and provide dares.

Wc rclched an agccincnc fox Rlrrombeg ro psovide a dcclaradon authcnticrchg recordings in lieu ot'ii deposition. Wc intend ro sharc that declaration with counsel fur thc defendants whcn we rcccivc it. Wc have nor yet wirhdznwn rhe subpoena to Bloomberg, but will do so upon receipr of rhc dcclara tioil.


11 /10 /2006 20:33 F A X 12128180477 LABATON SUCHAROW LLP

Anthony J . Harwood

cc: Howard Cato, Esq. jcfftcy Squire, Esq. ( :hristop her Heffdfinger, Esq. nmicl Harris, Esq.


11/10/2006 2 0 : 3 3 FAX 12128180477 L A B A T O N SUCHAROW LLP u u q / v u o

C O W C T I C U T S DEPONENTS AS OF NOVEMBER 10,2006 (Chronological Order)

1 . -

Fed. R. Civ. P. 30@)(6) by Robert I I 1

Date August 17,2005 August 24,2005. September 9,2005 and June 7,2006

.. . Witness 1) Bryant I-Tichw~ 2) JDS on Documenr Ret.endon,

Pursuant to Fcd. li. Civ. P. 30(b)(G), by Kenneth Cameron and Jamcs Walker

- .. 3) john Werherdl 4) Ycter Heywood 5) leffrey Clstcr 6) IDS on the lkdbook Pursuant to

Location S m Francisco San Francisco

D~ytona Rcach New York City New York City Ottawa

Russell 7) X,eslic llrown H) '1'0ni McWilliams 9) Shclly I'ictrrrsdc 10) Druvid Lighdoor 1 I) Carol Anne Graves 12) Stephanic Franklin 13) 'Rick MncMillan 14) Candy Johnston

October 17,2005 December 1 5,2005 February 27,2006 March 16,2006

30@)(6) witness 19) Kuss Johnson 20) J R Newhncl (Lucent) 31) Kcrry Dehoriry 22) Kumar Visvannthn

- 23) Bob Russcll 24) Leo l~lebvre 25) Josc Mejh (Lucent) 26) Mario Leduc 27) Mnu~icc Tavaxes 28) Ken <:rawford 29) Michael l ~ ~ p s - 30) Alison Rcyndcrs 3 1 ) Roger Miskuwicl:

September 13,2006

I 8) Erns t LYe Young by Ed Grabowy as San Jose

Sm Francisco California lrvinc, California Ottawa Ottawa San Francisco Ottawa C a l i f o d

40) Petcr Moore

A u p ~ t 18,200G August 18,2006 August 22-23.2006 August 29,2006 August 30,2006 August 31,2006 August 31,2006 September 8,2006 -

Medo Park Denver San Jose Ottawa Ottawa Omws San Francisco Q m w a Ottawa Palo Alto Palo Alto Ncwnrk U y w a San Franci~co

Octobes 17,2006 October 18,2006 October 20,2006 Octobcr: 20,2006 Octobcr 25,2006 Octobct 25,2006 October 26,2006 November 1,2006 November 3,2006 November 3,2006 November 8,2006 Novembex 11,2006 Novembcr 14,2006

Omwa

November 17,2006

N\lovember- - November 20,2006 November 20-2 1,2006 November 21 -22,2006 N(wembcr 27-28,2006 Week of November 27,

33) Jeff Chase 34) Gerry Fine (Comb& 35) Ghazi Chroui (Coxvis)

2006 November 29,2006

Palo Alto Boston Baldmore

36) Charles Jay Abbe 37) Kevin K;.lkhuvea 38) Jozcf Stnus 39) Cisco pursuant to 30@)(6)

Sari Francisco Medo Park Otrawa Tn bc dctcrmiled


11/10/2006 20:33 FAX 12128180477 L A B A T O N SUCHAROW LLP a u u s / u u 3

Date Nov~lnbcr 30,2006

November 30,2006 November 30-Dccembet 1, 2006 'i'o be dctcnnined To be dctcrmined To be determined

To t c dccermined

To be determined To be dctcrmided To be dctennincd '1'0 be determined To be dctcrmi~~cd '10 be determined To be determined

Wimess 41) Eian Gcrtel

42) Glen Kernick (I~riccwarcrhouse) 43) Anthony Mullex

44) Thomas Piue 15) Gordon Buchan 46) Ken Bradley at C:ulzh Cunco

(Norteo 47) Nortel purxuan t ro Fed. R. Civ. P.

3 0 (b) (G) 48) Ilcanc Nolan 49) Lou Greco 50) Fred Schafer 51) Utucc Day 52) Trevor Roots 53) IJhil Anthony

Locarion Philadelphln (location ro be confirmed) Snn Francisco Palo Alto

Ontatio, Canada Onwrio, Canada Ontario, Canada

To be d e t e k e d

Ontario, Canada Ontario, Canada Ontario, Canada To be detcrmincd '1'0 be determined To bc d c t d n c d To be determined

55) JDS pursuant to I;ed.R.Civ.P. 3O(b)(6) by a rcprcsennuve knowledgmb b about inventory rcporring, controls, rcscrvcx, writc downs, aging and obsotescencc

To be determined To bc d t t d e d


Exhibit 20


Court File No: 06-CV-34251

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS ~ppl icant

- and -

THOMAS PlTRE

- and - Respondent

JDS UNIPHASE CORPORATION

Moving Party

NOTICE OF MOTION

The Moving Party, JCjS Uniphase Corporation (hereinafter "JDSU") will make a

Motion to the Court on May 19, 2006 at 10:OO o'clock in the morning or as soon after

that time as the Motion can be heard at the Courthouse at 161 Elgin Street, Ottawa,

Ontario.

PROPOSED METHOD OF HEARING: The motion is to be heard orally

THE MOTION IS FOR:

1. An Order joining JDSU as a respondent to the application being brought by

Connecticut Retirement Plans and Trust Funds (the "Applicant") for enforcement of a

letter rogatory issued by the United States District Court, Northern District of

California, Oakland Division on January 18, 2006 to the Ontario Superior Court of

Justice (the "Application").

2. In the alternative, an Order granting JDSU leave to intervene as an added party to


i i the Application.

I 3. An Order adding JDSU as a party in the style of cause.

4. An Order permitting JDSU to participate in cross-examinations relating to the I

I Application, and to file a memorandum of fact and law in this proceeding.

5. An Order granting JDSU leave to present oral argument at the Application in respect

of this proceeding, which hearing has been scheduled for April 21, 2006, but

adjourned to a later date, not yet been scheduled.

6. An Order setting out such other directions on the procedure for and extent of the

intervention of JDSU as this Court deems appropriate.

THE GROUNDS FOR THE MOTION ARE:

1. The moving party, JDSU is a defendant in a class action commenced by the

Applicant in California for alleged violations of securities legislation.

2. In the context of the U.S. class action, the Applicant is seeking to conduct an

examination of the respondent, Thomas Pitre, a former employee of JDSU.

3. On January 18, 2006, the United States District Court, Northern District of California,

Oakland Division, issued a letter rogatory to the Ontario Superior Court of Justice

with respect to the examination of Thomas Pitre (hereinafter the "Letter Rogatory").

4. The Applicant has brought an application before the Ontario Superior Court of

Justice seeking to have the Letter Rogatory enforced.

5. The Applicant has not named JDSU as a respondent to this Application even though

it is a defendant in related proceedings in another jurisdiction.

6. Mr. Pitre is not a party to the U.S. court proceedings. He does not have any

knowledge of these proceedings and will not be able to assist the Court with, infer


aha, the issues in the action, the witnesses already deposed or the relevance of his

evidence, if any.

7. JDSU's participation in the Application is necessary to provide information to allow

the Court to adjudicate effectively and completely on the issues in the proceeding. It

will bring a different perspective than Mr. Pitre or the Applicant which may be useful

to the Court to adjudicate the issues in the Application.

8. JDSU has an interest in the subject matter of the Application, which is not merely

jurisprudential. It has a real, substantial and legitimate interest in the proceedings.

9. Furthermore, as a defendant in an ongoing action, JDSU's legitimate commercial

interest may be adversely affected by this Court's ruling with respect to the

Application.

10.The relevance and the scope of any discovery of Mr. Pitre is still at issue. There

exists between JDSU and the Applicant a question of law and/or fact in common

with one or more of the questions in issue in the application.

I I. If the Court orders that the discovery of Mr. Pitre should proceed, JDSU should be

added as a party and be permitted to participate in the examination.

12. Rule 1.04(1), 1.05, 5.03, 13.01 of the Rules of Civil Procedure, R.R.O. 1990, 0.Reg.

194.

13. Such further and other relief as this Honourable Court seems just.

THE FOLLOWING DOCUMENTARY EVIDENCE will be relied upon at the hearing of

the Motion:

1. Affidavit of David Vellequette sworn April 17, 2006, with exhibits.

2. Such further and other evidence as counsel may advise and this Honourable Court

may permit.


DATED at Ottawa this 2oth day of April, 2006.

L . W L \ GOWLING LAFLEUR HENDERSON LLP V Barristers and Solicitors

2600 - 160 Elgin Street Ottawa, Ontario K1 P 1 C3

Christopher Van Barr Phuong T.V. Ngo Andrew W. McKenna Tel.: (61 3) 233-1 781 Fax: (61 3) 563-9869

Solicitors for the Moving Party, JDS Uniphase


Court File No.06-CV-34251

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS

Applicant - and -

THOMAS PlTRE Respondent

- and -

JDS UNIPHASE CORPORATION Moving Party

AFFIDAVIT OF DAVID VELLEQUETTE

I, David Vellequette, of the City of Milpitas, in the State of California , MAKE

OATH AND SAY AS FOLLOWS:

I . I am the Chief Financial Officer and Senior Vice President at JDS Uniphase

Corporation, the moving party. As such, I have knowledge of the matters to which I

herein depose. Where my knowledge is based upon information and belief, I have

indicated the source of my information.

2. JDS Uniphase Corporation ("JDSU") was created from a merger between Uniphase

Corporation and JDS FlTEL Inc. on or about June 30, 1999. JDSU's corporate head

office is in Milpitas, California. JDSU also operates in Ottawa, Ontario.

3. JDSU is one of the defendants in a class action commenced by the Connecticut

Retirement Plans And Trust Funds (the "Applicant") in California for alleged


violations of securities legislation. The class of plaintiffs are represented by the

Applicant, as lead plaintiff.

4. The plaintiffs are seeking damages for alleged violations of the Securifies Exchange

Act of 1934 and the Securities Acf of 1933. Among other things, the Applicant

alleges that JDSU misled the market by reporting strong demand, making optimistic

predictions, and failing to write down its inventory quickly enough. Attached as

Exhibit "A" is a copy of the Second Amended Consolidated Complaint for Violations

of the Federal Securities Laws filed on January 9, 2004, which is the current

complaint.

5. JDSU served its answer to the Second Amended Consolidated Complaint on

February 28, 2005. JDSU has actively participated as a party during the course of

the entire action to defend its interests. Attached as Exhibit "B" is the JDSU

Defendant's answer to the Second Amended Consolidated Complaint.

6. The Second Amended Consolidated Complaint seeks damages in an unspecified

amount. I am informed and believe that estimates of potential damages range from

approximately $1 00 million to several billion dollars, depending on the method used

to calculate the estimate. The allegations made against JDSU have always been

diligently denied and defended. Of course, any award in favour of the plaintiffs will

have significant financial impact on the corporation and may cause JDSU to cease

operations. This will impact its employees and shareholders. JDSU has a legitimate

commercial interest in these proceedings.

7. The trial of this action is scheduled to proceed on August 13, 2007 for a period of

nineteen (1 9) days. Attached as Exhibit "C" is a copy of the Minute Order and Case

Management Order of November 28, 2005 setting out the litigation timetable for the

U.S. action.

8. Thomas Pitre is the party subject to the application by the Applicant in the Ontario


Superior Court of Justice. It is my understanding that Thomas Pitre was an

employee of JDSU from January, 2000 to June, 2003. Mr. Pitre is no longer

employed by JDSU.

9. During the period of his employment, it is my understanding that Mr. Pitre worked in

the Supply Chain Management Department for one of JDSU's groups, the

Fibreoptics Product Group ("FPG"). His role was to take forecasts from the sales

group and product line managers and determine how much FPG could actually

manufacture in light of labour, supply, and other capacity constraints. Mr. Pitre was

not a director or officer of JDSU.

10. On or about August 18, 2000, the plaintiffs allege that Mr. Pitre caused an email to

be sent from his JDSU email account to other employees of JDSU. The plaintiffs

have attached significant importance to this email in their class action. Attached as

Exhibit "D" is a copy of Mr. Pitre's e-mail dated August 18, 2000.

11. On December 20, 2005, the Applicant filed a motion with the United States District

Court, Northern District of California, Oakland Division for issuance of a letter

rogatory to the Superior Court of Justice of Ontario to obtain discovery from Thomas

Pitre.

12. JDSU filed a Statement of Non-Opposition under United States Law. It has always

been the position of JDSU that it is entitled to actively participate in any examination

of Mr. Pitre, if any were ordered. Attached as Exhibit "EN is a copy of JDSU1s

Statement of Non-Opposition dated January 3, 2006.

13. On January 10, 2006, the Applicant filed a Reply in Further Support of its Motion for

a Letter Rogatory. Attached as Exhibit "F" is a copy of CRPTF1s Reply.

14.On January 18, 2006, United States Magistrate Judge Elizabeth D. Laporte granted

the motion and issued a letter rogatory. In her Order, Judge Laporte underlined the


i I parties' submissions to make additional prospective orders regarding the procedure

and scope of the discovery in Canada. She deferred those questions to be

I determined by the Canadian court, including the issue of the sc,ope of the discovery.

Attached as Exhibit "G" is a copy of the January 18,2006 Order. I

15.0n or about March 30, 2006, the Applicant filed a Notice of Application with the

Court seeking an order enforcing the letter rogatory issued on January 18, 2006.

16.The Applicant has named Thomas Pitre as the only respondent to this Application

even though JDSU may be affected by any Order of the Court in this Application,

which may include allowing Mr. Pitre's examination for discovery.

17.JDSU has a real and legitimate interest in the subject matter of the Application

before the Court as the main defendant in the class action commenced by the

Applicant in California. Any evidence sought from Mr. Pitre (if relevant) may affect

JDSU's position and interest in the U.S. action.

18. If JDSU is not added as a respondent to this Application, it will not be able to make

submissions regarding the appropriateness (if any) of the discovery; the scope of the

discovery and could be limited in its ability to participate in such a discovery. This will

adversely affect its ability to defend itself in the U.S. action.

19.The Applicant is requesting that the Court enforce the letter rogatory to examine

Thomas Pitre for discovery. As a former JDSU employee, Mr. Pitre would only have

a general understanding of the litigation. Mr. Pitre has had no involvement with the

action since it was commenced in 2002. As a result, it is my belief that Mr. Pitre

would have no accurate knowledge of the following facts:

a. The status of the litigation in California;

b. What witnesses have already been deposed by the Plaintiffs;

c. The status of documentary discovery;


d. Whether there are other witnesses who are available to be deposed who

could provide the parties with similar testimony; or

e. The relevance, if any, of examining him for discovery.

20.The relevance and the scope of any discovery of Mr. Pitre is still at issue, as set out

in Judge Laporte's Order. JDSU would be able to provide the Ontario Court with a

different perspective than Mr. Pitre or the Applicant with respect to these facts.

21. Should an examination of Mr. Pitre proceed, he could be asked to give undertakings

to produce documents that are in the possession of JDSU. These documents may

not be relevant to the issues in the U.S. action. It is my understanding that Judge

Laporte has been appointed to hear motions and issue rulings on discovery

including relevance. Attached as Exhibit "H" is the Order appointing a Magistrate

Judge and as Exhibit "I", the docket entry assigning Magistrate Judge Laporte.

22.Furthermore, as a defendant in an ongoing action, JDSU1s legal and legitimate

commercial interest may be adversely affected by any ruling by this Court with

respect to the Application.

23.This affidavit is sworn in support of the motion brought by JDS Uniphase for an

Order joining it or adding it as a responding party to the Application to enforce a

letter rogatory and for no other purpose .

SWORN BEFORE ME at the City of Milpitas, in the city of

)

in the State of California )


I 425 MARKlX .n?uilF MORRISON k POERSTBR 1.1.~

M O R R I S O N F O E R S T E R SrU\t fi'RANCISCO NEU, YORK, I A N P R A N C I S C O ,

CA1411:C3RN1A 94105-2482 1.0s ANEilil.ES, PAI.0 Al.l'C>.

SAN DIBGO. \VASHING1'ON. D.C

'CIiI,~IPI~IONli: 415.268.700(1 DENVER, NOR711RRN VlR<IINI:i ,

ORANGR COIIC'TT. S.\(;liilhlli?LTO. l~ACSIMIldi: 415.268.7522 \VALNUT CRBBK. C B N T L I R Y LIT\ '

August 2,2006

TOKYO. LONDON. BRIIIN(;.

SHANGIIAI. IlClNG LONG. SINGAPORE, BRtlSStll.S

Writer's Direct Contact 415.268.6095

By Fax (21 2.81 8.04 77)

Anthony J. Warwood, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 1 00 1 7

Re: In re JDS Uniphuse Corporation Securities Litigation, Master File No. 02-1 486 CW (EDL)

Dear Tony:

I write in response to your July 3 1,2006 letter regarding the proceeding to compel Thomas Pitre's deposition in Ottawa (the "Ottawa proceeding").

JDSU's position regarding the Ottawa proceeding remains unchanged. Specifically, JDSU does not oppose the deposition of Mr. Pitre. JDSU seeks to ensure that the Ottawa proceeding is fair, and that the record is complete and accurate.

JDSU's involvement in the Ottawa proceeding has already prevented Plaintiffs from promulgating false and misleading testimony. For example, you inaccurately testified that I stated that Mr. Pitre removed documents fiom the Company. I understand that after probing by JDSU's Canadian counsel, your testimony has since been corrected. If JDSU had not participated in your cross-examination, however, there would have been no oversight to ensure that your inaccurate testimony was corrected.

Similarly, I understand that Plaintiffs have made inaccurate representations regarding the number of Canadian residents fiom whom they are seeking testimony. In particular, I understand that a letter fiom Plaintiffs' Canadian counsel recently referenced Plaintiffs' list of deponents on that point, stating that the list disclosed the location of the witnesses. As you know, however, the list is not accurate for several witnesses. Among other things, it lists San Francisco as the location of the following witnesses: Stephanie Franklin, Carol Ann Graves, Dave Lightfoot, Rick MacMillan, and Jozef Straus. As you know, these five witnesses in fact reside in Ontario. Plaintiffs also omitted the fact that Plaintiffs in the Zelman action intend to depose Zita Cobb and Joseph Ip, also Canadian citizens, and that Plaintiffs in this action will have the opportunity to attend those depositions.


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. August 2,2006 Page Two

In sum, JDSU's participation in the Ottawa proceeding already has prevented Plaintiffs from creating a biased and misleading record. Accordingly, JDSU will continue to exercise its right to participate and does not agree to withdraw the questions contained in Phuong Ngo's July 3 1,2006 letter.

To the extent your comments about the qualifications of Mr. Pitre's counsel and the source of his payment were meant to imply that JDSU is somehow exerting control over the decisions and actions of Mr. Pitre and his counsel, let me assure you that nothing could be further from the truth - JDSU does not control either Mr. Pitre or his counsel. Indeed, as we have previously informed Plaintiffs and the Court, Mr. Pitre has declined JDSU's requests to interview him.

very truly yours,

Terri Garland

cc: Howard S. Caro, Esq. Scott K. McLean, Esq. Jeffrey H. Squire, Esq. Christine P. Tabbert, Esq. Christopher C . Van Bm, Esq. Phuong Ngo, Esq.


LABATUN SUCHAROW LLP

Labaton Sucharow

June 27,2006

VIA FACSIMILE

'I'ctri C;nrhnd, Esq. Howard Caro, Esq. Morrison & Focrstcr Heller Ehtman Whitc & McAulifle U P 425 Mrrkct Strcct 333 Bush Strect Snn IJmncisco, California 941 115-2482 San Ikincisco, Cdifornia 94 104

1 : JDS Ulliphase Corporauon Securities Lidgadon

13car Tcrri arid Howud:

Wc arc planning to filc n rnt~don for lctters rogatory to ubbin evidence from Mnuricc Tavarcs, Mario Leduc and Cbdou Buchan. Ciivcn chat Canadian pmoceedings to obtain evidence can bc quicc runc consuinhg, wc would like to brief thc motiorl on the following schedule: 1) moving papcrs filed and served electronically on June 30,2006; (2) opposition pap- fied and sewed elecuonicalIy on July 10,2006; (3) reply papcsa fYcd and served electronically on July 13,2006; and (4) a heazi~g on July 18,2006. We would also be willing to waive the hearing if that is acceptable to thc C:orut. Please let us know whether that is acceptable to you.

Wc irrtc~ld lo support the motion with the documents on thc ar~dchcd list h a t JDS has marked confidential. Pursuant to Judgc Laporte's st~nding order, we axe prepared to mcct and confer with you abour rhese confidcnudty designations on June 28 or June 29 on or beforc 2 p.m. Pacific time. or on June 30 cm or before noon Pacific time.

We believe rhnr rhc cnnfidcntiality designations axe not proper because thc documents are morc than fivc ycnrs old. Given rhc mpid pacc of technological change in thc telecommunications industry, those docu~nents 110 longer hnvc any compcciuve or proprietary valuc. Moreover, as we have previously advised you, che non-disclosure agtccmcnrs ihar JUS produced to us between-JDS and its customers do not protect documents that arc morc than fivc ycars old.

We have been trying to mect and confer with counsel for JDS abouc confidenualig designations sincc June 12,2006. We offcred to mect and confer on J u e 21, Junc; 23, June 28 and June 30. Counsel fur JDS rejected June 21 outright and xcjcctcd Junc 23 d e s s we would join to thc discussion additional issucs thst JDS mised for thc erst timc on Junc 20 and as to which we had not I~rlrl ndcquatc rinrc to prepare. Caunscl for JDS also rejected our offer to mccr and confcr on June 2H or Junc 30, staring rhar: aftex June 23 they wiU bc umvailable to mcct and confrrr untilJuly 11.




MORRISON425 MARKET S"IREE"T

FOERSTER SAN FRANCISCOCALIFORNIA 94105-248 2

'11-U E P I I ON I,: 415.268 .7000

FACSIMILE: 415.268 .7522

WU W.MOEF( .CO M

October 18, 2006

By Fax

Anthony Harwood, Esq .Labaton Sucharow & Rudoff LLP100 Park Avenue, 12th FloorNew York, NY 10017-556 3

Re : In re JDS Uniphase Corporation Securities Litigation ;Master File No . 02-1486 CW (EDL)

Dear Tony:

MORRISON R FOFRSTISR i .lP

NRW YORK, SAN FRAN CIS Ct),

LOS ANGF'. LfiS , PALO AI.T(I ,

SAN DIIiGO , WASHINGTON, D,C .

DENVER , NORTHERN VIE ( ;INIA,

ORANGE COI .!NTY, SACRAMENTO,

WALNUT CREEK, (-V.NT0RS CITY

TOKYO, LONDON , RIlI 1 ING.

SHANG FIA I, HONG KONG,

S1NGAPORR , RRI'SSRL S

Writer's Direct Contact

415.268 .6095TGarland@mofo .com

I write in response to Plaintiffs' request for an extension of the December 1 cut-off forcompleting depositions in this case . When we met and conferred about that request onMonday, you stated that Plaintiffs were seeking an indefinite extension of time to completethe depositions of Canadian witnesses. Although you weren't prepared to give a definitivelist of the witnesses included in your request, you identified the following seven witnesses -Thomas Pitre, Tom Dorval, Ken Bradley, Lou Greco, Peter Moore, Ileane Nolan, andGordon Buchan. (I note that your letter of earlier today does not mention Mr . Greco, Ms.

Nolan, or Mr. Moore. Are Plaintiffs no longer seeking to depose those witnesses? )

We've discussed your request with our client and cannot agree. Plaintiffs have known sincethe beginning of this action more than four years ago that numerous former JDSU employeesand customers are Canadian citizens, yet have delayed unreasonably in initiating the processnecessary to depose them. For example, Plaintiffs have been contending (incorrectly, fromour point of view) that Mr . Pitre has information central to their case since filing the secondamended complaint in January 2004, yet waited more than a year after discovery beganbefore even initiating the process to obtain his deposition . Similarly, Plaintiffs obtained aletter rogatory for the deposition of Mr . Buchan on August 4, 2006, and then waited almosttwo months to apply to enforce it .

At most, and as an accommodation, the JDSU Defendants would agree to a limited extensionif the Canadian court does not rule by November 17 on Plaintiffs' application to depose Mr .

sf 2211872

MORRISON FOERSTE R

Anthony A. HarwoodOctober 18, 2006Page Two

Pitre. In that event, JDSU would agree to allow Plaintiffs up to three weeks to take Mr .Pitre's deposition following an order from the Canadian court granting the application, but inno event later than January 19, 2007 .

Very truly yours,

Terri Garland

cc: Howard S. Caro, Esq .

sf-2211872

Joseph J. Tabacco, Jr. (75484) Christopher T. Heffelfinger (1 18058) B E R U Y DeVALEWO PEASE

TABACCO BURT & PUCLLO 425 California Street, Suite 2025 $an Francisco, California 94 104-2205 Telephone: (41 5 ) 433-3200

0C-r 1 1 2006. ~acsiraile: (41 5)433-6382 WARD w. W I E ~ I M

-I-. osmm Qknn Liaison Counsel for Lead plaintiff , * O R T H E ~ ~ ~ ~ R I ~ ~ ~ ~ ~ C ~ ~ e c t i c u t Retirement Plans and Trust Funds md Counsel for Oklahoma Firefighters Pension and Retirement System

Jonah3 M. Plasse Barbara J. H a t Anthony I. Harwood Michael Stocker (1 79083) Jon Adms LABATON SUCIXAROW & RUDOFF L W 100 Park Avenue New York, Ejew York 1001 7-5563 Tel~hone: (212) 907-0700 Facstmile: (2 12) 8 18-0477

Lead Cour,seI for Lead Plaintiff Connecticut Retirement Plans and Trust Funds

[Additional counsel listed on signature page]

UMTED STATES DISTRICT COURT

NORTHERN DISTRICT OF.CALII;ORNIIA

OAKLAND DMSION

N RE JI3S UNl'PHASE CORPORATION ) Master File No, C 02-1486 CW SECURTTIES LITIGATION

) -LETTER RUGATOTtY TO ) THE SUPERIOR COURT OF OF ) ONTARIO, CANADA 1 1 "

! 1 . ?


TO TlltE SUPERIOR COURT OF OhTAlRfO, CANADA:

WHERE!AS, the captioned action is properly under tire jurisdiction of and is now pending

in this Court; I i i

WHEREAS it appears that en 3rad1'ey has evidence relevant to this action which will b 4 * adduced during the trial of this action if the evidence is admissible;

WHEREAS this evidence is not otherwise obtainable; . .

WHEREAS,. it -appears necessary for the purpose 6f justice that Ken Bradley, a witness I I

7 1 residing or otherwise doing business within your jurisdiction be examined the~e, with a view to

testifying, producing authenticating and reviewhg documents within his possession and control;

YOU ARE REQUESTED, in furtherance of justice, to ceuse the aforesaid witness to-

l2 11 When you reguest it, this Court is ready and willing to do the same for you in a simiIar

1°1

\appear by means ordinarily used in your jurisdiction to answer questions under oath or

I 14 !/ ~ h i s ' h t k r Rogatory is signed and scaled by Ordm of the Court made on the date set

!

4 .

& ! ! /

affirmation and to bring to and produce sf thc examination the documents set fmfh 6 the

scheduIe annexed hereto.


:ase 4:02-&-01486 Document 649-2 Filed 1011 212W6 Page 4 of 8

SCEEDVWF, A: KEN BRADLEY

. DrnNXTIONS

1. "Defendants" means Defendants JDS Unipbse Corporation, Jozef Sfraus,

4nhony R. Muller, Charles J. Abbe, and Kevin Kalkhoven.

2. "Individual Defendants" mean Defendants Jozef Straus, Anthay R. Muller,

Zharles J. Abbe, and Kevin Kalkhoven.

3. "JDS" means Defendant D S Uniphase Coqmratiott, its Board of Directors, each

:ommike of its Board of tors, each of its subsidiaries, divisions, subdivisions, joint

tentures, parents, affiliated persons, and p~decessors (including but i t limited to hiphase

Zorporation and D S FITEL, Inc.), and its present and fonner directors, officers, employees,

representatives, age&, and other persons acting on behalf of any of them.

4. 'Wottel" means Nortel Networks Corporation, its Board of Directors, each

:ommitke of its Board of Directors, each of its subsidiaries, divisions, subdivisions, joint

ventures, parents, amliated persons, and predecessors, and its present and former directors,

officers, employees, representatives, agents, and other persons acting on behalf of any of them.

5. "E&Y means Ernst & Young LLP, each of its subsidiaries; divisions,

subdivisions, offices, joint ventures, parents, affiliated persons, and predecessors, and all presenl

and former partners, directors, oficers, employees, representatives, agents, intermediaries, and

other persons acting on behalf of any of the foregoing.

6. "Communication" means the bnsmittal of information, in the form of facts,

ideas, inquiries or otherwise.

7. "Concerning" ineans relating to, referring to, descniing, evidencing or

:onstituhg.

8. "Document" is synonymous in meaning and equal in scope to the usage of this

m in Rule 34(a) of the Federal Rules of Civil Procedure, and includes e-mails and dectronic

3r computerized data compilations. A draft or non-identicd copy is a separate document within

Be meaning of this term.

PnopryjrD LZTTER RCIGATO?IY Maser File No. C 02-1486 CW

2


i ' i 9. "Meeting*' means any encounter between two or more persons, wliether

2 I / or by chance, and whether formal or infoma'i & occurred in connection with ~omc I 3 other activity, during which a communication of any kind occumd, and. shall include without I I i 4 1 lirnitatiop impers'on conversations, telephone con+cnations, and teleconference or I I 6 11 10. "Products" means any product developed, manufactured, or sold by JDS,

I

7 including but not limited to fiber-optics, semiconductor lasers, high-speed 'external modulators, I I i 8 j transmitters, amplifiers, couplers, multiplexers, circiIators, tunable filters, optical switches, and I I I 9 isolators for fiber-optic applications. I I I

10 1: 1 I . %son" means any natural person or any business, legal or governmental entity I t 1 or association. I/

12. The terms "aI1" and "each" shall be construed as a l and each.

13. The connectives "and" and "or" shall be construed either disjunctively or

coajunctively sa necessary to II- within the scope of this Request for Produdion all responses I 15 that might otherwise be considered to be outside of its scope. ; ! I

I 14. The use of the singular form of any word includes the plural and vice versa.

15. The tern '>ou" or ''your" shall mean or refer to Ken Bradley.

11. RELEVANT PERXOD i

Unless otherwise indicated in a specific Request for Production, the Relevant Period , .

I I

20 (1 herein is October 28,1999 through JuIy 26,2001, and shall include a11 documents which relate 4 21 '

such period ~ v m though prepared, published, sent or received, in whole or in part, prior or I' ' I 22 subsequent-to this period.

111. msTRUCTXoIVs

I / I . In producing d6cumenfs and other mm-iaIs in response to this Request for f 25 I i

! pr0ductio~-you are requested to furnish all documents in your possession, custody, or control, 25 1 I I

regardless of whether such documents are possessed directly by you or your agents, employees, I ! i i

P~OPOSED m a R O G A ~ X Y WQT File No. C 02-Id% CW 3


'I - " 3

partners, npnsentatves, kbsidiaries, affiliates a investigators, or by your sttomys or their i

agents, emp'ioyees, or investigators. i 3 11 2. AH d6cuments you produce in response to this laquest shall either: (a) be

i I 4 . organized and labeled to correspond witb the number of the request to which the documents are ) II . r

responsive, or (b) be produced in the order and in the manna in which you keep the documents i

in fhe usual mane of business with a designation of the file or files from which the d m m e n s I have been produced. I - :

3. f rduce each dacment in response to this Request for Production in its entirety,

without deletion or excision, regardless of whether you consider the entire document to be ,

relevant or responsive. ' ~ f my requested document cannot be produced in M, prod~ce it to the

extent pos&blc, indicating which portion of that document is being withheld and the reason that

poxtion ofthe document is king withheld. Do not produce "redacted" documents unless you are

13 j asserting a priviIege or immunity with respect to the redacted portion. I i i

4. If you object to any quest in this Request for Production on the ground that it is I 15 overly broad, produce documents in response to the request as narrowed to conform to your I1 I

I i objection and state in your response (a) how you narrowed the request, zad (b) the reason why 1 you claim the request is overly broad.

5. If you withhold any responsive document from production pursuant to a claim of

19 11 attomey-cIient privilege, attorney work pmduct doctrim, or any other privilege or immunity, !

.the following hfomtion with respect to each auch document:

(a) The type of document, e-g., letter or memorandum; .

(b) The actual or approximate date of the document;

(c) The autbor(s) of the. docum& and any other person(s) who prepared or participated in the preparaticm of the document;

(d) A description of the subject matter and physical size (e.g., the number of pages) of the document;

(e) All addressees and recipient+) of the original or a copy thereof,

(f) together with the date or approximate date on which said- recipient(s) received the document or a copy thereof;


' 1 - . - -

i i

(g) All other persons to whom the contents ofthe document have been disclosed, the date such disclosure took place, and the means of : such displosure; and

, (h) The nature ;of the privilege ar other rule.of law relied upon and any facts supporting your position.

IV. DOClJMEN3 REOtneSTED i

S f - i] I . All electronic mail conckming JDS during the Relevant Time Period, including a11

1 electronic msil contained on ywrhome or laptop mmputer and any electronic mail contained on

. any storage device or in storage. I I

8 i - .

9 1 1 2. All documents or communications concerning Nortel's projected, forecasted, or

actual demand for JDS products.

3. Alt docunnents or communications concerning the cancellation or niodification of i 1 any orders for JDS products by Wortel.

I

4. All documents o+ communications concerning the return of JDS products by I

Nortel. '

5. All documents or communications concerning NorteI's receipt of JDS products . I - -

16 prior or subsequent to the requested or agreed upon delivery date. I

6. AH documents m co&cations concerning Noml's receipt of X I S products 1 17 ! 1

for orders that bad been cancell'ed by N o d or for orders which XarteI had not made. 18 11

7. A11 documents or communications concerning Nortel's refusa! to accept delivery : 9 i

of JDS producks or refusal to pay for JDs' products.

8. All documents or cbmmunications concerning any meeting bemeen No~te1 and I I

JDS, including weekly, monthly, quarterly, or other meetings at which (a) Nortel's historical, 22 I! I

projected, forecasted or actual denwid for JDS Products; @) orders for JDS Products; (c) I I

madifictitios or cancellation of orders for JX>S Products or (d) inrrentory of JDS products was I IS 11 discussed.

'1 9. An documents or communications concerning Quarterly Business Reviews 26 1: I

between Nortel and JDS. 21 / /

i i /1 P R O ~ ~ R ~ ~ Y ,

; Mu;= File No. C.02-1486 CW 5

ii i


between Nortel and JDS.

i i . AII documents or communications concerning written or oral agreements betwee

NorteI and JDS reIated to the purchase of JDS products, including side letters.

12. All documents or communications concerning OEM agreements between Nortel

and J D S . i

13. All documents or communications concming any JDS poducts stored at Nortel, ' i including without limitation inventory received from JDS on consignment or with any right of

return.

14. All documents concerning communications with EBtY concerning JDS. i

15. All documents or communications concerning Nortel's policy for the retention or

destruction of documents.

16. All notes, calendars tpersonaI and business), and other documents rettxting to JDS :

during the Relevant Time Period.

17. All documents concerning.sales of IDS products to Nortel on consignment,

including correspondence concming the terms of such consignment sales. I i I

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I PRcwsm Umn RGGATOP~ &@~i!e KO. C 02-1486 CW 6

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