in re jds uniphase corporation securities litigation 02-cv-01486-declaration of brian...

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DECL. OF BRIAN ORION I/S/O JDSU DEFTS' OPP. TO PLTFS’ MOT. TO COMPEL

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

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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, Jozef Straus, Anthony Muller, and Charles J. Abbe

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 BRIAN ORION IN SUPPORT OF JDSU DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THE REOPENING OF DEPOSITIONS

Date: January 23, 2007 Time: 9:00 a.m. Ctrm: E, 15th Floor Before: Hon. Elizabeth D. Laporte

Case 4:02-cv-01486 Document 780 Filed 12/29/2006 of 5

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DECL. OF BRIAN ORION I/S/O JDSU DEFENDANTS’ OPP. TO PLAINTIFFS’ MOT. TO COMPEL


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I, BRIAN ORION, declare:

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

to practice before this Court. I am an associate at the law firm of Morrison & Foerster LLP,

counsel of record for the defendants JDS Uniphase Corporation (“JDSU”), Charles J. Abbe, Jozef

Straus, and Anthony Muller (collectively the “JDSU Defendants”), in this action. I submit this

declaration in support of the JDSU Defendants’ Opposition to Plaintiffs’ Motion to Compel

Production of Documents and the Reopening of Depositions. I make this Declaration based on

personal knowledge, except for any items stated on information and belief, which I am informed

and believe are true. If called as a witness, I would testify to the following facts.

2. Attached as Exhibit 1 is a true and correct copy of an excerpt from the JDSU

Defendants’ Responses to Lead Plaintiff’s First Request for Production of Documents served on

April 4, 2005.

3. I am informed and believe that before moving to compel on December 12, 2006,

Plaintiffs did not meet and confer with JDSU’s counsel regarding the production of documents in

JDSU’s possession, custody, or control, for the forty individuals listed in paragraph one of the

[Proposed] Order Regarding Connecticut’s Motion To Compel.

4. On July 12, 2005, Plaintiffs filed Lead Plaintiff’s Notice of Motion, Motion, and

Memorandum in Support of Motion to Compel Production of Documents.

5. Attached as Exhibit 2 is a true and correct copy of a transcript created at Morrison

& Foerster from an audio tape of an August 16, 2005 hearing before Judge Laporte. I am

informed and believe that my colleague Mathew dos Santos listened to an audio recording of the

hearing and confirmed that the transcript accurately sets forth the dialogue in the recording from

the hearing, excluding extraneous interjections, exclamations, or repeated words.

6. Plaintiffs served several non-parties with document-only subpoenas in March

2005. Among others, Plaintiffs served subpoenas on Harry Deffebach (March 10, 2005), Eitan

Gertel (March 1, 2005), and Michael Phillips (March 2, 2005). I have reviewed the subpoenas for

these three individuals and confirmed that the subpoenas called for the production of documents

concerning transactions in JDSU securities.


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7. Attached as Exhibits 3, 4, and 5 are true and correct copies of objections that

Messrs. Deffebach (April 11, 2005), Gertel (March 28, 2005), and Phillips (April 11, 2005),

served to Plaintiffs’ March 2005 subpoenas.

8. Attached as Exhibit 6 is a true and correct copy of a March 17, 2006 letter from

Joseph C. Merschman to Holly H. Tambling.

9. Attached as Exhibit 7 is a true and correct copy of an April 7, 2006 letter from

Holly H. Tambling to Joseph C. Merschman.

10. Beginning in September 2006, Plaintiffs issued deposition subpoenas to, among

others — Ashok Chandran (September 12, 2006); Jeff Chase (October 12, 2006); Ken Crawford

(September 29, 2006); Bruce Day (December 22, 2006); Eitan Gertel (October 12, 2006); Scott

Parker (November 17, 2006); and Michael Phillips (October 12, 2006). Each of these subpoenas

sought documents concerning transactions in JDSU securities from each of these individuals.

Each of these witnesses timely served objections to these subpoenas, asserting privacy rights

regarding personal financial information, with the exception of Mr. Day, whose objections are not

due until January 5, 2007. Plaintiffs did not ask to meet and confer on these objections until

October 30, 2006. Counsel for JDSU and Plaintiffs met and conferred on November 9, 2006, but

were unable to reach an agreement on the production of non-party financial information. The

deposition subpoena Plaintiffs served on Harry Deffebach, dated August 2, 2006, did not seek

documents concerning transactions in JDSU securities.

11. Attached as Exhibit 8 is a true and correct copy of an October 30, 2006 letter from

Anthony J. Harwood to Terri Garland.

12. Attached as Exhibit 9 is a true and correct copy of the subpoena Plaintiffs served

on Morrison & Foerster on August 1, 2006. Attached as Exhibits 13, 14 and 15, are true and

correct copies of the subpoenas Plaintiffs served on Wilson Sonsini (July 19, 2006), Collette &

Erickson (July 28, 2006), and Sullivan & Cromwell (August 1, 2006), respectively. Counsel

began meeting and conferring regarding the scope of the Morrison & Foerster subpoena on

September 11, 2006. I am informed and believe that on September 25, 2006, Morrison &

Foerster informed Plaintiffs that it would make available certain documents that had been


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produced to the Antitrust Division of the Department of Justice in order to obtain regulatory

clearance for mergers. Plaintiffs inspected those documents over six days ranging from

September 29 to October 12, 2006. Mr. Tavares’s notebooks were among the documents that

Plaintiffs designated for copying during their inspection. Morrison & Foerster provided the

designated documents to Plaintiffs’ copy vendor on October 20, 2006. I am informed and believe

that on November 1, Plaintiffs requested the specific Bates label numbers for Mr. Tavares’s

notebooks. Within one hour of receiving this request, Morrison & Foerster provided Plaintiffs

with that information.

13. I am informed and believe that Plaintiffs deposed Mr. Tavares for five hours and

forty-five minutes on November 3, 2006. Plaintiffs used approximately forty-five minutes of Mr.

Tavares’s deposition to question him about his notebooks. Attached hereto as Exhibit 16 is a true

and correct copy of an excerpt from Mr. Tavares’s deposition transcript.

14. Attached as Exhibit 10 is a true and correct copy of a letter dated December 11,

2006, from Philip T. Besirof to Anthony J. Harwood, noting that in a December 7, 2006 meet and

confer session, Plaintiffs stated their intention to try to reopen Mr. Tavares’s deposition.

15. Plaintiffs’ proposed order, at paragraph one, lists forty individuals. I have

reviewed this list of individuals and I have also reviewed documents setting out the job titles for

certain of these individuals during the relevant time period. Plaintiffs list includes three

administrative assistants, a customer service representative, and numerous other non-executive

personnel.

16. Attached as Exhibit 11 is a true and correct copy of a December 15, 2006 letter

from Philip T. Besirof to Anthony J. Harwood.

17. Attached as Exhibit 12 is a true and correct copy of a November 7, 2006 letter

from Philip T. Besirof to Anthony J. Harwood.

18. Before both Mr. Abbe and Dr. Straus were deposed, JDSU produced all non-

privileged documents in its possession showing their transactions in JDSU securities.

19. Morrison & Foerster coordinated the deposition appearances of the following

Canadian witnesses: Kenneth Cameron, Stephanie Franklin, Carol Ann Graves, Mario LeDuc,


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Leo Lefebvre, David Lightfoot, Rick MacMillan, Roger Miskowicz, Peter Moore, Robert Russell,

Maurice Tavares, and Kumar Visvanatha. Before deposing the Canadian witnesses, Plaintiffs

were aware that many had asserted outstanding objections to producing their personal financial

information. Each non-party Canadian witness that was served with a subpoena seeking

documents concerning transactions in JDSU securities timely served objections to producing such

documents on privacy grounds.

20. JDSU has produced documents reflecting Eitan Gertel’s trades in JDSU securities.

These documents (JDSU2419855-60, JDSU2419866-68, JDSU2420345-46, JDSU2891707),

were produced to Plaintiffs on January 24, 2006, several months before Mr. Gertel’s deposition.

21. In response to the an agreement reached with Plaintiffs’ counsel, on May 26, 2006,

Messrs. Deffebach and Phillips provided Plaintiffs with declarations confirming the information

in their Form 4s filed with the Securities and Exchange Commission.

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 on the 29th day of

December 2006, in San Francisco, California.

/s/ Brian Orion Brian Orion

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

Stipulation. In compliance with General Order 45, X.B., I hereby attest that Brian Orion has

concurred in this filing. /s/ Terri Garland

Terri Garland


Exhibit 1

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MELVIN R. GOLDMAN (BAR N.O.334 97)JORDAN ETH (BAR NO, 121617)TERRI GARLAND (BAR NO. 169563)ALISON M_TU.CHER (BAR NO- .1 71363)PHILIP T. BESIROF (BAR NO. 185053)RAYMOND M. HASU (BAR NO. 200058)MORRISON & FOE TER LLP425; Market St.metSan Francisco, CA: 94105-2482..Telephoner (415)1268-7000Facsimile: (415) 268-752 2rk ui( ofo.com

Attorneys for Defendants JDS Un pl . Corpoz on,Jozef Straus, Anthony Muller, and Charles Abb e


NORTHERN DISTRICT OF CALIFORNI A

OAKLAND DIVISION

In re JD:S UNIPHASE CORPORATION Master File No. C-024486 CWSECURITIES LITIGATION

JDSU DEFENDANTS ' RESPONSEThis D.eument Relates tc : All Actions TO LEAD PLAINTIFF'S FIRST

REQUEST FOR PRODUCTION OFDOCUMENTS

PROPOUNDING PARTY :

RESPONDING PARTIES :

SET NUMBER:

LEAD PLAINTIFFCONNECTICUT RETIREMENT PLANS AND TRUSTFUNDS

DEFENDANTSJDS UNIPHASE CORPORATION, JOZEF STRAUS,ANTHONY MULLER, and CHARLES ABBE

ONE

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Pursuant to Federal Rule. of Civil Procedure 34, Defendants JDS Uniphase Corporation

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("JDSU" ), Jozef Strom, Anthony Muller, and Charles Abbe (collectively,, the "JDSU

Defendants") hereby submit the follow.ing objections and responses to the Lead . Plaintiffs First

bequest far Production of Documents, dated March 1, 2005 . (the "Requests"

TheJDSU Defendants have conducted and are continuin to conduct a diligent search fo r

documents in response to Plaintiff's Requests. The JDSU Defendants have not completed their

investigation of the facts relating to this case, have not completed discover in this action, an d

have not completed preparation for trial . Additional investigation, research, and analysis may

require amendment or revision of these responses . "I JDSIJ Defendantsts' responses are based on

information presently known to them ., and are given without prejudice to the JDSU Defendants '

right to provide or introduce at trial evidence of any subsequently discovered information .

GENERAL OBJECTIONS

1 . The JDSIJ Defendants object to each ofthe .Requests to the extent that it seeks

information or documents that are neither relevant to the claims or defenses of any party nor

reasonably calculatedlo . lead to the discovery of admissible. evidence . ]Moreover, in

responding to these Requests, the JDSU Defendants concede neither the relevance nor the

materiality of the responsive ;documents. The JDSU Defendants reserve the right to object to

any further discovery on the topics contained in the Requests and . to the admissibility of the

Requests and any response to the Requests, in any filing or proceeding, including at trial .

2 . The JDSU Defendants object to each of the Requests to the extent that it: seeks

documents that are protected by the attorney-client privilege or seeks documents prepared in

anticipation of litigation or for trial, or that are otherwise subject to the attorney work

product doctrine or any other applicable privilege or immunity . Any in-advertent.production

of privileged documents shall not be: deemed to be a waiver by the JDSU Defendants of the

attomey-client privilege, :. the. work-product doctrine, or any other applicable privilege or

doctrine.

3, The JDSU Defendants object to the Requests to the extent that they call fo r

production of documents containing trade-secret or confidential infonnati~n . Any such

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documents will be produced in response to the Requests only upon entry of a suitabl e

protective order, unless. other, i utually acceptable protections are negotiated among counsel.

4. The JDSU Defendants object to the Requests to the extent tl :`ihey call for

disclosure of information about individuals where such disclosure would violate the

indi'idual's privacy rights ..

5. The JDSU Defendants -object to each of the Requests to the, extent it seeks

materials equally available to Lead Plaintiff through publ - sources or records .

6. The JDSU Defendants object to the definition of "E&Y" as vague, ambiguous,

and overbroad. The JDSU Defendants will construe "E&Y" to mean . its outside auditors: at

Ernst & Young LLP.

7. The JDSU Defendants object to the definition of "Financial . statements" as vague

and ambiguous. The JDSU Defendants farther object to the defnitiort P overbroad and

unduly burdensome to the extent that it purports to impose on the JDSU Defendants an

obligation to search for documents outside JDSU'S possession, custody, or control .

8. The JDSU Defendants object-to the definition of "Working papers" and "wor k

papers" as vague and ambiguous, The JDSU Defendants further object to the definition as

overbroad and unduly burdensome to the extent that it purports to impose. on the .JI3SU

Defendants an obligation to search for documents outside JDSU's possession, custody, or

control.

9, The JDSU Defendants object to the dcfiniticn of"Concerning" to the extent that i t

requires the application and disclosure of the subjective legal judgment of the .JDSU

Defendants' attorneys and would require a conclusion or opinion of counsel in violation of

the attorney work product doctrine .

10. The JDSU Defendants Object to the definition of "JDS" as overbroad and unduly

burdensome to the extent that it purports to impose on'the JDSU Defendants an obligation to

search for documents outside JDSU'spossession , custody, or-contrdl, The J 3SU Defendants

will construe "JDS" to mean IDS Uniph se Corporation and its current officers, directors,

and employees.

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1 I _ The JDSU Defendants object to the Requests, including each definition and

instruction contained therein, to the extent that they purport to impose obligations on the

JDSU Defendants that are greater than:those osed by the Federal Rules of CivilImp

Procedure.

12. The JDSU Defendants object to the. Requests, including each Definition and

Instruction, to the extent that they purport to impose upon the JDSU Defend is an

obligation to identify and produce documents not otherwiise. contained.irn files maintained by

the JDSU Defendants, or require the JDSU Defendants to ,search for and produce document s

not in their own possession, custody, or control .

13. The JDSU Defendants object to Instruction No. S to the extent that it imposes on

the JDSU Defendants pan obligation to fur fish Lead Plaintiff with a privilege log that contain s

more information than required by applicable law . To the .extent that a. Request on its face

categorically requests privileged documents, no privilege log will be produced.

14 . The JDSU Defendants object to the Requests as a whole as overbroad and unduly

burdensome. Literal compliance with. these Requests would require the JDSU Defendants t o

search :for and produce virtually every document in their possession . relating to JDSU during

the period January 1, 1999, to April 4, 2005, evert though the 'vast majority of such

documents have no bearing on this case Moreover,. JDS T employs thousands of persons

who work in. locations throughout North America and al road . Requiring the . JDSU

Defendants to search all facilities and the files of :all employees is unduly burdensome and

harassing- It wotuld be a practical impossibility even to assemble all of the documents that

might be called for by the Requests . Thus, for the time being, and without prejudice to Lead

Plaintiff's ability to seek additional documents from other, locations . later, the . JDSU

Defendants will search for documents at .JDSSU's facilities in San Jose and Ottawa . Except as

otherwise specified in response to a particular request, the JDSU Defendants will search for

documents in: (1) the central files of the finance, legal, sales, public relations, investor

relations, and human resources departments in those facilities ;.. (2) files maintained by or on

behalf of Dr. Straus, Mr . Muller, and Mr. Abbe, and (3) any files maintained at-JDSU

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facilities by, or on behalf of, Charles J . Abbe, Keith Bisbee, Donald. Bossi, Frank Bro t,

Becky Browne , Remi Brinks; Ashok Chandran, Jeff Chase, Dan Clayton, Zila Cobb, Tor n

Conway, Phil; Cracco, Bruce Day,Harry Deffebach, Kerry Dehority, Greg Dougherty, Robert

Enos, Steve Fife, Mike Foster, David Fox, Eitan: Gertel, Bryan Guckavan, Peter Guglielmi,

Jessica Huynb; Joseph Ip, Russ Johnson, Kevin Kalkhoven, Leo Lefebvre, Fred . Leonberger,

Jolty MacNaughton,: Joseph Major,. Barbara Mayo, Peter Moore, Steven Moore, Anthony

Muller, John Murphy, . Scott Parker, Leo Paolett , Joe Passarello, Dan Pettit, Michael Phillips, ,

Shelley Pietrusiak, Thomas, P itre, Charles Ragussa, Eric Rasmussen, David Renner, Alison

Reynders, Trevor Roots, Donald Seifres , Wilson Sibbett, William Sinclair , Casimir

Skrzypczak, .Nancy Smith (Klaus), Mark Sobey, Jozef Straus , Sanjay :Subhedar, .Henry Tang,

Maurice Tavares, Scott Tave, Anna Vo-Luong, David Wilson, Alfred Wu, and Joseph Zits

(and the .personal or executive assistants). To the extent that any of the individuals

identified in this list left JDSU's employment before this .lawsuit was filed, JDSU will take

reasonable steps to locate and search any JDSU files that were maintained at JDSU by these

individuals, or on their behalf, during their employment with JDSU.

15 . The JDSU Defendants object to the "Relevant Period" demanded by Plaintiff as

overbroad and not relevant to the subject matter:of this action. To the extent that a JDS U

Defendants agree to produce documents in response to any of the Requests, they agree to

produce documents (1), dated April 1,1999 to July 26, 2001, anti (2) dated July 27, 2001, to

September 30, 2001:, to the extent that such documents discuss the JDSU Defendants '

activities during: the purported Class Period.

16. The JDSU Defendants have not completed their investigation of the facts of this case

or their preparation for trial . The JDSU .Defendants respond to this set of Requests based on

information currently known to them and reserve the right to supplement, modify, and amend

their responses and. assert additional objections should the .JDSU Defendants discover additional

facts, documents, or other evidence at a later time, The JDSU Defendants further reserve the

right to make use of any ,subsequently discovered facts, documents, or other, evidence at an y

hearing or at trial.

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1 1 7 . Where the JDSU Defendants state that they will produce documents, this. does not

2 mean that. responsive documents exist . It represents only that responsive documents will b e

3 produced if they, exist, ..can be located with reasonable diligence, and are not otherwise protected

4 from disclosure .

5 18. By producing documents, the JDSU Defendants do not concede the relevance o r

6 materiality of the Request or its subject matter . The JDSU Defendants' responses and production

7 of documents are made subject to all, objections as to competency, relevance, materiality.

8 privilege, and admissibility as evidence for any purpose in this action .

9 19. The JDSU Defendants state these objections without waiving or intending to

10 waive, but on the contrary preserving and intending; to preserve:

11 (a) all objections to competency, relevance,:materiality :privilege, and

12 admissibility as evidence for any purpose of the responses'to the Requests, the document s

13 produced, or the subject matter thereof, . in any subsequent proceeding . it, or the trial of, . this or

14 any other action;

15 (b) the right to object on any ground to the use of any of these responses, the,

16 documents produced, or the subject . matter:thereof, in any subsequent proceeding in, or the trial

17 of, this or any other action; and

18 (c) the right to object on any ground to any other or future discovery requests .

19 The JDSU Defendants object to . the time and place specified for production as .unduly

20 burdensome given the broad scope of these Requests, and the large volume of documents

21 requested . Documents will be, produced at. :a date and time to be mutually agreed. upon- by

22 counsel .

23 SPECIFIC F SPONSES

24 Subject to and without waiving the JDSU Defendants' General Objections set forth above,

25 and to the specific objections stated with respect to particular Requests below, the JDS U

26 Defendants respond to the Requests, subject to the establishment of a confidentiality agreement,

27 as follows:

2a -

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RESPONSE TO R UEST FOR PRODUCT ION NO. 44:

The JDSU Defendants incorporate by reference each General Objection into thei r

response to this Request. The JDSU Defendants object to. this quest to the extent the Request

seeks documents protected by the privacy rights of the individuals,referenced in Request 44 . The

JDSU Defendants also object to this Request because it is overbroad in that it seeks documents

that are neither relevant to the claims or defenses of any party nor reasonably calculated . to lead to

the discovery of Omissible evidence. The JDSU Defendants also object to this Request because

it is vague and ambiguous , especially with : respect to the term "executives," and fails to describe.

the documents sought with .reasonable par.:.ticularity..

Subject to the above objections and . incorporating by reference the General Objections ,

and to the extent such documents can be located<after a reasonably diligent search as described i n

General Objection 14, the JDSU Defendants agree to produce documents discussing bonuses ,

loans,, and extensions: of credit to the Individual Defendants .

REOIJEST FOR PRODUCTION NO. 455,

All documents concerning the sale, purchase or transfer o:fJDS securities by any .

Individual Defendant or any other JDS director, officer, or executive, including but not limited to :

(a) documents concerning stiles, guidelines or procedures governing the sale of JDS securities ;

(b) communications, with stockbrokers, investment advisors or finances planners concerning the

sate, purchase or trader. of JDS secur ties; (c) communications . between any JDS personnel on

that subject; (d) documents concerning the proceeds or use of proceeds from any sale of JDS

securities; and (c) Form 4s filed with the . SEC

RESPONSE TO REQUEST FORFRUDUCTIO.N NO. 45:

The JDSU Defendants incorporate by reference each General Objection into thei r

response'to this Request . The JDSU Defendants object to this Request to the extent the Request

seeks documents protected by the privacy rights of the individuals referenced .in .Request 45 . The


that are neither relevant to the claims or defenses of any party nor reasonably calculated to lead to

the discovery...o€ adtniss ble .evidence..

sf-.1884127 35

Subject tote above objections and incorporating : by reference the General Objections,

and to the extent such.. documents can be located after a reasonably diligent search as described in

General Objection 14, the JDSU Defendants agree. to produce (1) J.DSUs written policies and

practices governing the sale of .IDSU securities by its officers, directors, and employees;

(2) communications between or among JDSU, the Individual Defendants, : and the individual

Defendants' stockbrokers, investment advisors, : or financial planners discussing the sale,

pnrcbase; or transfer of DSU securities ; and (3) Form is filed with the SEC .

REQUEST FOR PRODUCTION NO.46:

All diaries, appointment zalendars, and telephone logs maintained by or on behalf 'of any

Individual Defendant, Zita M . Cobb, Bruce D. Day, Harry Deffebach, Robert E . Enos; Joseph Ip,

Fred Leonberger, John A . M ughton, Danny E. Pettit, Michael C . Phillips, Casimir

Skrzypc e, Pitre, . and all recipients of the Pitre E-mail.

RESPONSE TO RE -UEST g R PRODUCTION NO.46

The. JOSU Defendants :incorporate : by reference each General Objection into their

response to this Request The JDSU Defendants object to this Request to the extent the Request

seeks documents Protected by the Privacy rights of the individuals earned in Request 4.6. The


that are neither relevant to the claims or defenses of any party nor reasonably calculated to lead to

the discovery of admissible evidence .

Subject to the above objections and. incorporating by reference, the General Objections ,

and to the extent such documents can be located after a reasonably diligent .search as described . in

General Objection 14, the JDSU Defendants agree to produce such work diaries, appointment

calendars, and telephone logs maintained by or on behalf of the Individual Defendants .

REQUEST FQR PRODUCTION NO. 47:

Documents, including but not limited to personal . financial . statements, sufficient to. show

the current net worth of each Individual Defendant.

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to the claims or defenses of any party nor reasonably calculated to lead to the discovery of

admissible evidence. Read literally, Lead Plaintiffs Request seeks "ally' insurance policies held

by JDSU, including, for instance, environmental and employment policies, which have no

relevance to the present matter.

Subject to the above objections and incorporating by reference the General Objections,

and Io the,extent such documents can. be located after a reasonably d igent search as, described in

General abjection 14, the JDSU Wend agree to produce nsurance .polici that I night

provide coverage with regard to the present action ..

Dated : April 4, 2005 MELVIN R. GOLDMANJORDAN ETHTERRI GARL TDALISON M. TUCHER .PHILIP T. .BESIROFRAYMOND M HASUMORRISON & FOERSTER LLP

By aw~Alison M. Tucher

Attorneys for DefendantsJDS Uniphase Corporation, JozefSt us, Anthony Muller, and CharlesAbbe

sf-1884127 40

Exhibit 2

Case 4:02-cv-01486 Document 780 Filed 12/29/2006 Page 1 of 22

sf-1986475 1

EDL Courtroom Transcript

August 16, 2005

Deputy: Calling Civil 02-1486 In re JDS Uniphase Corporation Securities Litigation. Counsel, please state your appearances for the record.

Harwood: Good morning Your Honor. I’m Tony Harwood from Goodkind, Labaton, been admitted pro hac vice. With me is Jon Adams and Mike Stocker from — Jon Adams is from Goodkind and . . .

Stocker: … from Berman DeValerio.

Judge: Very good, thank you.

Harwood: We’re for the Lead Plaintiff.

Besirof: Good morning, Your Honor, Philip Besirof from Morrison & Foerster for the JDSU Defendants, and with me is my colleague, Terri Garland.

Judge: Good morning.

Caro: Good morning Your Honor, Howard Caro of Heller Ehrman for defendant Kalkhoven and I’m with my colleague Madeleine Loh.

Judge: All right. Okay. Well, let’s start with the motion to compel the production of the Lead Plaintiff’s fee agreement. The only thing specific that I’ve gleaned that defendant is arguing is something that would be improper and create some kind of conflict of interest is something about requiring or providing incentives to hold the Individual Defendants liable. Can you explain that?

Besirof: Yes, Your Honor. We use that as one example . . .

Judge: Right. But what is that example? I don’t even understand that one.

Besirof: Yes. That would be for instance if the fee agreement specifies that one of the individually named defendants, let’s say Kevin Kalkhoven, the former CEO of the company, personally contributes to any settlement in the case, that a bonus would be paid to class counsel for that, and that would provide a political benefit to the Lead Plaintiff, who has political aspirations, but it would provide nothing to the class.

Judge: The Lead Plaintiff being?


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Besirof: The Connecticut Treasurer.

Judge: Mm-hmm.

Besirof: But it would provide nothing to the class. Because your average class member would have no — it would be of no moment whether monies were paid from the company or from perhaps from the individual pocket of one of the defendants.

Judge: All right.

Harwood: Well, I’d have to disagree that it would have no significance to the class because — well, first of all, it’s completely hypothetical — I should say that. But, and I have — but it would certainly be of moment to the class if the class received an award from the company and an award from the Individual Defendants as opposed to an award only from the company.

Judge: Right. You’d think it would increase the pot.

Harwood: Exactly.

Judge: And result in more recovery. So, I find that very attenuated, but I — but that would be a decision for the trial judge, not for me as to whether that constituted a conflict or not. But the trial judge has already found an adequate counsel I take it.

Besirof: But Your Honor, we have a class certification hearing coming up where adequacy, of course, is the prime issue.

Judge: Mm-hmm. [repeated]

Besirof: And this discovery is needed for that class certification.

Judge: All right, well, and the main objection to — that I understood from Lead Plaintiff is that you want to redact communications regarding the settlement value of the case.

Harwood: Yes, Your Honor. Well, it’s — the fee agreement is structured in such a way that there are different percentages at different recoveries. We are now going into . . .

Judge: With different tiers . . .

Harwood: Different tiers.

Judge: . . . so you can — it’s the downward sliding scale presumably.


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Harwood: So we are now going into a mediation, and that sort of information would, I believe, reflect counsel and the client’s assessment of the settlement value of the case . . .

Judge: Well, potentially.

Harwood: . . . and shouldn’t be disclosed at this point.

Judge: Well, you could redact what the — you could leave the percentages in and redact the tier, in other words, the trigger or the different percentages kicking in, I suppose.

Harwood: Yes, I think we could do that.

Judge: Is there anything — I mean, if I have to I’ll look at this in camera. I mean I think that the cases say only under limited circumstances does this have any relevance. But there are limited circumstances according to the Ninth Circuit where it would, and since I don’t know what’s in there, if I have to, I’ll look at it. You know . . . but I would prefer if we can just agree on what you can redact and you’re willing to turn it over.

Besirof: We would have no opposition, Your Honor, if plaintiff merely redacted the dollar amount of the triggers that we’re talking about.

Judge: Right, but I don’t know if there are other things that are sensitive in there also.

Harwood: Well, our preference would be to have it reviewed in camera, it’s not a long document, it wouldn’t be burdensome.

Judge: Well . . .

Harwood: That’s a procedure that’s been endorsed by other courts.

Judge: All right, well I’m willing to do that, but then I want you to also put specifically what you want to redact. You know, show what that is to me, you know with brackets or something else. And, I don’t want to have an ex parte communication so I think you should explain to me now if there are any other bases for wanting to redact without revealing whatever it is that you don’t want revealed.

Harwood: The only concern is that this would reflect settlement strategy.

Judge: Okay. All right. Anything further?

Besirof: Well, I just want to be more specific, Your Honor. So, is it Your Honor’s order that they would place brackets around the dollar amount of these triggers?


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Judge: Right. And anything else they say that they want to redact, which if there is anything else that I consider an example. And then I will decide . . .

Besirof: Okay.

Judge: . . . what if anything, you know, what should be redacted. I definitely think the trigger is a threshold where different percentage kicked in should be redacted. Ultimately, this is going to be relevant but I think it’s not relevant now unless it reveals some kind of arguable conflict. All right. So, that’s the defense motion and when can you submit that?

Harwood: We should be able to do that next week.

Judge: Okay, does it have to be that long?

Harwood: Well . . .

Judge: The sooner you submit it the fresher it is in my mind, so . . .

Harwood: We’ll try to do it this week.

Judge: Okay. I’d like to get it this week. All right. Then — multiple other issues in the plaintiff’s motion. On the time period, the issue seems to be documents that refer back to the relevant time period, but that were generated after the relevant time period, is that correct?

Harwood: Correct.

Judge: All right. And there is certainly case support for finding relevance to those and ordering them. On the other hand, there is the issue of the burdensomeness and basically the proportionality of Rule 26(b) — but really it comes down to burden. I imagine that, I suppose you are seeking many, many millions of dollars so fairly larger expenditures would be proportional. There is a grab bag of arguments about what’s burdensome on the defense side, and I’m certainly convinced that there is burdensome burden, there is burden. There is kind of — one of them is sort of surprising though, which is some of this is on active computer servers and that would be disruptive. I mean, usually it’s considered that the active stuff is a lot easier to access than the archived and stored stuff and even if it’s disruptive, not only somewhat, and can be done on nights and weekends and it could be, or mirror images could be created or what have you. I mean that is usually considered the easiest and least expensive. So, I mean I was somewhat taken aback to see that. It made me somewhat skeptical when I see that thrown in. It’s sort of overreaching I would say.

Besirof: That’s the case Your Honor, because we’re already in the process of reviewing of the litigation back-up tapes that we have created. So, the active server tapes are just in place and we have not reviewed those tapes.


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But, I think that the most important issue is that we are talking about financial statements that were made in 2001 with the last allegedly false statement occurring May 10, 2001. Is there some remote possibility that a relevant document exists after their class period? It’s possible. Is it possible the week after the statement was made? Yes. Is it possible at the end of that quarter? Becoming less likely. Is it possible the following financial quarter, would there be statements that reflect back to the class the class period that we’re talking about? Highly unlikely. And when you couple that, Your Honor, with the burden that we would face in terms of reviewing, as you saw in Mr. Walker’s declaration, huge amounts of electronic data searching for a needle in a haystack that might not exist. Basically, plaintiff’s argument is that “oh, let’s just have them look at three and a half years just to see if there is some statement that reflects back.”

Judge: Right. I mean I do think it’s overbroad as stated. If there was some particular cause for suspicion that there was some smoking gun afterwards, you know I don’t know would it be a year later, “oh my God, I just looked at the year old statements, and you know, we’re in big trouble if anybody finds out.” I mean is that what you’re looking for? I’m not sure what it is.

Harwood: Well, I want to take issue with a couple of things there. I think that it’s not highly unlikely that statements made after the class period will appear in their documents. I don’t think that the employees at JDS instantly stopped talking about the problems with the company’s finances the day the class period ended. In fact, I would suggest that when the class period ends and when the stock has pretty much reached its bottom with respect to these representations that are at issue, that’s when people are really going to start talking. And when a lawsuit is filed, people are going to start talking again. And when a motion to dismiss is granted or denied people will start talking about it again. Or, when there are articles in the newspaper about it, so, I completely disagree with the proposition that it’s remote that there will be information subsequent to the end of the class period. I think it’s just defying reality to think people instantly stopped when the class period ended, in some ways that’s an arbitrary date. And it’s a date that gets people — to the extent that it has any effect on people — it gets people concerned about the problem, not sooth it, it doesn’t sooth them.

Judge: Right, but I mean you really haven’t addressed burdensome in this argument. I mean you know, your side — there is no — I mean these are the hardest cases because all of the burden is on one side. There is no mutually assured destruction here to lead you to limit what you ask for.

Harwood: Well, I haven’t seen — although we’ve seen a declaration on electronic evidence, I haven’t seen anything in the defendants’ papers to indicate that


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their documents are even segregated by date, so that by shortening the time period they would in fact be looking at less documents. As I understand there are boxes in many diverse locations. They’re not indexed, they’ve told us in a letter that they have 25,000 of these boxes, that they’re going to have to pull every single one of them.

Judge: Well, I think, I mean this is, you know — this is the kind of thing where I wish that the two sides could engage, and I’m going to require you to in some kind of meaningful meet-and-confer. This is the sort of argument that requires, I think, some creative approach. It’s not all that creative, it’s all over the place, and The Sedona Principles and all the law review articles where you agree on some kind of sampling, both if necessary the electronic and the hard copies. You look at that and you phase it in, you have certain deadlines. You target what you think is going to be the highest pay dirt, because if the sampling doesn’t reveal anything helpful then, you know, you’re not going to get any more. If it does, then it’s going to justify further — and you know — I shouldn’t have to sit here and handcraft this for you. You all should be able to do that.

Besirof: Your Honor, may I respond to Mr. Harwood comment? Two things: and, Your Honor used the example of an employee looking at a financial statement X number of years later, and saying “oh my gosh, we’re in trouble for that statement three years ago.” Well, even that wouldn’t be relevant. That would not show anything about the scienter of the defendants at the time those statements were made. Is there, you know, is there some possibility that someone reflects back on those statements? It’s possible, but it doesn’t go to the issue . . .

Judge: No, but they might say — they might say “oh my God, I’m more likely to get caught now for the bad stuff I did.” Okay, so plainly there could be things that are relevant. The question is, you know, how do you balance the benefit and the burden and I’m just, I’m not ruling out some discovery in the later period. But I think as what the plaintiff wants now is very much overbroad, but I think that they do make a point that it’s not magically completely irrelevant after the relevant time period. There is some relevance and you need to come up with some kind of a plan that, with you looking for your absolute best case, not just scatter shot look at everything, and do some sampling that is not unduly burdensome and then see if it turns anything out. If is doesn’t, then you’re not going to get any more. If it does, look at what the next stage is. But, so, I mean, the most guidance I can give you now is it’s not irrelevant, but it’s sufficiently less likely to yield pay dirt that it’s got to be approached accordingly.

Harwood: There was one other point I wanted to make on this before we leave it Your Honor, which is that we — the defendants have made requests to the plaintiff for class discovery purposes which are completely unlimited as to time, and just yesterday they took deposition of a member of the


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Investment Advisory Council for the State of Connecticut who only joined the Investment Advisory Council ten months ago. So, this is a little bit also of a waiver argument because . . .

Judge: I don’t buy that. In other words, if they’ve been doing something wrong bring a motion, but I don’t go with the school of thought that, you know, we can accuse the other side of taking inconsistent position, therefore grant us ours. If their position is wrong, hold them to it.

Besirof: The difference, of course, Your Honor, is class adequacy is an issue now. The financial statements . . .

Judge: Well, I don’t know what the difference is, it’s really not before me. And, you know, we’ve got a lot of issues to go through. So, I just don’t find that kind of reasoning persuasive.

Besirof: Your Honor, can I raise one more point briefly? Depending on the size of the additional class period that plaintiff is going to ask for, would Your Honor consider some sort of cost shifting with regard to those dates.

Judge: Well, maybe, but I mean not for the initial sampling, so let’s have — in other words, we’ll see what that turns up, but that’s got to be not terribly expensive or not vastly expensive. See what that turns up.

Besirof: Thank you, Your Honor.

Judge: So not for the initial testing, but, you know, that should be a limited . . . Now, on the locations it doesn’t seem that there is a disagreement, it’s rather a question that all these locations ultimately have to be searched, it’s rather a question of timing, is that correct?

Harwood: Yes, Your Honor . . .

Besirof: We . . .

Judge: All right.

Besirof: Yes, we told the Lead Plaintiff from the beginning that we would start with these two headquarters and then other locations that were mentioned in the complaint would follow.

Judge: Okay, well — before getting back to schedule let’s continue on more specifics. The request for all the documents in the personnel files of defendants and certain non-defendants, I — I don’t see the relevance of that. The few nonbinding cases that say, that deal with 1983 claims against police, are completely distinguishable. Those are usually dealing with issues like did the municipality train them, did they have repeat use of force, and so on. So, that reasoning is just not applicable.


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Harwood: There is more to those cases than that . . .

Judge: Well . . .

Harwood: . . . there is also the issue of credibility.

Judge: Yeah. And, in fact, if credibility was an “open sesame,” all witnesses’ credibility would always be relevant, and you could always get their personnel file no matter what. It’s just that reasoning I find completely unpersuasive.

Harwood: These are important witnesses, Your Honor, and the . . .

Judge: Well, I know they’re important, but I just don’t see the relevance of their personnel file. Now, if you said were they disciplined for stock fraud or something like that, or for talking to the SEC, that might be relevant, but their personnel files in general, I just don’t see.

Harwood: The defendants have access to them and if we put on witnesses who present damaging evidence to the defendants’ case there is nothing to stop the defendants from going through those personnel files, and using that on cross-examination.

Judge: I don’t understand, what, “didn’t you get a good performance review from the same company that’s guilty of fraud?” Is that what you’re talking about? You haven’t given me an example of anything that I find persuasive, I don’t know what it is that . . .

Harwood: Well, there could be evidence in the personnel file that a witness has embezzled money, there could be evidence that a witness has committed fraud.

Judge: No. All right. I’m denying it without prejudice. If you come back and ask for evidence of fraud or embezzlement or things that are related to the current accusations, that’s a different story. But, you come nowhere near making the showing to overcome the privacy concerns. All right now, on the other hand, diaries, appointment calendars, telephone logs I think can be highly relevant. Personal information, like say doctor’s appointment, or going to the kid’s school, or what have you, that can be redacted. Is there anything either of you want to add on that topic?

Besirof: Your Honor, we already agreed to give those documents with regard to the Individual Defendants, although plaintiff’s papers don’t say that. Our objection is the fact that they had included 38 people for whom they want these documents with no subject matter limitation. So, we would ask that some reasonable subject matter limitation, so they get those documents, but as it relates to the allegations of the . . .


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Judge: Well, like what? What are you proposing?

Besirof: Well, Your Honor, I would propose the same type of limitation that we use, for instance, in our response to request to Request Number 2. I can read that to the Court, would that be helpful?

Judge: Mm-hmmm.

Besirof: Demand for JDSU’s products, actual or forecasted financial results, efforts to expand or contract manufacturing capacity or headcount, revenue recognition, inventory levels, goodwill, accounting practices, forecasting of revenues or sales, financial statements, financial reporting, or mergers with the three transactions that are relevant to this case.

Judge: But what does that do? I mean that means you’ve got to go through, and spend hours going through the diary redacting things based on somewhat subjective — I mean, if a diary says “meeting with so-and-so” and it’s one of the defendants, they should know about that and be able test whether that was or wasn’t about any of these topics. I mean I think it’s sort of impractical, that’s the problem with what you’re suggesting.

Harwood: I agree with you on that, Your Honor. I think that typically what you’ll see in the diaries are just, you know, “conference call with Kalkhoven,” that’s a very important fact for us. This is a witness who was involved in estimating demand and had a negative view of the company’s future demand, and had a call with Kalkhoven on a particular date, we need to probe about that.

Judge: All right, now have you put date limits on this?

Harwood: We have — no, we have not, we have applied the same relevant period.

Judge: Mm-hmm. Well, the relevant period meaning the class period, or you’re saying through the present?

Harwood: No, no. Through April of 2005. And this is not anywhere near as burdensome as the requests directed to the company as a whole . . .

Judge: Well, I agree, yes, I agree with that.

Harwood: . . . it’s just diaries, it’s 38 people.

Judge: Now, the 38 is — how are they picked, the ones who aren’t defendants?

Harwood: These are either . . .

Judge: That’s 38 of them who aren’t.


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Harwood: These are either people who engaged in some insider trading on their own but are not defendants, who traded stock during the class period, we’ll call it.

Judge: But didn’t necessarily rise to the level of trading that would . . .

Harwood: We made a strategic decision not to make them defendants.

Besirof: Your Honor . . .

Harwood: Or, they are — excuse me — there is another group of very senior executives who are general managers of plants where there was, where there was questionable conduct who were responsible for marketing or demand issues. So, these are people who have responsibilities that go precisely to the top as Mr. Besirof identified.

Judge: Right. I’m going to grant this and redactions can be made on purely personal appointments, you know, such as doctor, or family. But, all business appointments that are reflected or business contacts should be produced. All right, on the — that’s Request 46. 47 is the net worth, current net worth. I find that extremely attenuated, and I just don’t — I’m not convinced that that is relevant. I mean I think the case is really, it’s the ones that you’ve cited are really distinguishable if you’re talking about the net worth of a company for example, or other — whether somebody can pay a loan that’s at issue, that kind of thing. But just net worth per se, I just don’t see the relevance of that. I think it’s, you know, how much stock did you sell relevant to how much you used to sell, and that kind of thing rather than how it impacts your net worth. I mean these people — it just seems very attenuated to me. All right, now . . .

Harwood: You said that was current net worth?

Judge: Current or at the time. 47 goes to current I think. But I think some of them you’ve also asked for net worth during the insider trading period, and I just don’t see the relevance.

Harwood: Right. During the period where the trading is taking place, Your Honor, if someone sells stock that’s worth 200% of their personal net worth, that has more probative value for determining scienter than if somebody sells .5% of their net worth.

Judge: Yeah, well, I suppose, but I didn’t see a single case that was supporting that.

Harwood: Well, we haven’t seen a single case that’s rejecting it either, in the defendant’s brief, and I think the case dealing with the net worth of a corporation is an analogous situation.


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Judge: I really don’t think it is. It just really seems — I think you’re talking about, you know, how much did they sell, and if they sold millions, you know, whether that’s a drop in the bucket of their net worth, or it’s a lot. I mean the only ones that we’d be probative of is people who are relatively poor. I just don’t see it. I’m not saying you can’t ask in depositions, for example, you know, “did you go out and buy any new Mercedes,” or “did you buy a new house?” I’m not saying that’s irrelevant, I just don’t see disclosing their exact net worth as relevant — sufficiently relevant.

All right. Then on, okay, I think 51 had to do with personnel files, diaries, we’ve already addressed that. Stock purchases, etc. I think that’s relevant. Should be done.

Now, personal information for former employees. This is another one where I would think, you know you ought to be able to, should have been able to, should now be able to meet-and-confer on something that makes sense. Because I don’t know, you know, defendant’s have thrown up a lot of objections about how would we find this information, some of them may well be valid, some of them may not be. I mean for electronic information that you have during the relevant period about, you know, that might help the plaintiffs track down disgruntled ex-employees who are willing to tell all now about, you know, past stock manipulation or what have you, they should be able to have a shot at finding those people, and if you can do that through your electronic databases, you know, certainly if they were fired or so on. But if you don’t have the exit interviews in an easy way to find, or you have them for some and not for others, that’s the kind of thing you have to talk about. If you have them for some, produce those. If you don’t have them for others, and would take a lot of trouble maybe you can’t produce them. Maybe they’re going to have to do the investigation themselves and just get a list of all the ex-employees from certain departments and maybe you need to define that more. In other words, I believe they are entitled to information about ex-employees and contact information. And to the extent that you have it, and can, you know, even justify some effort in finding it, but you know to draw the line and say what effort is too much, nobody gave me enough of that. So, again, I think it’s something I think you ought to be doing in phases. You know, figure out — I think the plaintiffs need to figure out where do they think their best shot is. And make sure you get those people. I mean, who do you have reason to suspect, certain departments, certain positions, or certain people even.

Harwood: We’ve limited our request to former accounting personnel.

Judge: Mm-hmm. And that’s a start, but I think you’ve said you’re not sure how to define that.


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Besirof: And another thing, Your Honor, is that the parties have already identified something like 108 employees and former employees. Many of those important people in finance who will have the information that plaintiffs are looking for.

Judge: Well . . .

Besirof: So, that during depositions if they want to discover further names, they can easily do that. It’s not as if they don’t have a head start into 108 or so people.

Judge: Well, and you know, and maybe they need a few hundred more. Again, I mean, I think you have to cooperate in coming up with a rational plan. The defendants, on the other hand, you can’t just say “no, we won’t do anything.” I mean, I think you have to — I don’t think you’re being forthcoming enough with what you’ve proposed is too expensive and too broad, but we’ll give you this, and we can do this. I mean that’s the problem, you know. If I could devote myself full time to you I could give you the kind of detailed guidance that you ought to be able to figure out for yourselves.

Harwood: Well, what I find hard to accept is that the defendants cannot identify who their former accounting personnel are.

Judge: Well, and that is hard to accept, I’m not sure if you mean at the margins so you might have some issues? But, in general, you ought to be able to tell that.

Besirof: The point made by Mr. Yonenage’s declaration on this was that even for those finance people who appear in our electronic database, their title will appear, but that title could well be, or the majority of it will be, “Admin. Clerk,’ for instance. Because they’re not senior people in finance, they’re Admin. Clerks, and there is no way to differentiate “Finance Admin. Clerk” from “Admin. Clerk” in any other business.

Judge: Well, I mean maybe then you just give that to the plaintiffs and they can decide whether they want to pursue the Admin. Clerks or not. I suppose, for example, some secretaries could be the biggest source of information possible, and others might have nothing.

Besirof: But that, Your Honor, would be giving them, you know, every Admin. Clerk that we have in our database.

Judge: Well . . .

Harwood: This is the first I’m hearing of the problem in that level of detail.


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Judge: Okay, I think you need to meet-and-confer. I mean this is really not ripe for me. Certainly, all the people who have ever complained about any of the practices, which I think you said should give them the contact information though. And, any of them are, you know, the last known address, etc., I mean as much contact information as you have. But even those who haven’t complained, you know, you should meet-and-confer and try to come up with something rational.

Besirof: And, Your Honor, we’ve already agreed to give them every whistleblower complaint, every internal complaint, every . . .

Judge: No, I know that. But I still, you know, I think they’re entitled to more than that, but how much more I can’t say at this point. So, I really think both sides have not adequately meet-and-conferred. I don’t know whose fault it is, and I’m not trying to assess fault right now, but I’m saying that if it doesn’t improve in the future, I’m going to be very disturbed.

All right, stock transactions by non-parties. I just don’t see that the plaintiff has, at this point, you’ve really explained what it is you hope to learn from that. I mean, they’re not named defendants, what the cases seem to say is there has got be some nexus between the named defendants and these other people. I don’t see the predicate for that yet.

Harwood: Well, let me make another attempt at it. We’re dealing with two categories of people, we’re dealing with people who actually didn’t make trades in stock during the class period, and actually it’s one category of people, right? It’s people who make trades within the stock during the class period.

Judge: Right.

Harwood: Now, if these people are trading their stock ahead of bad news, it’s an indication that they know about the bad news. These are people who are going to lead us to the senior managing people who had knowledge of the adverse information. For example, if employee X traded stock during the class period because employee X knew that demand was a problem, and then we depose employee X and we find, or we get employee X’s calendars, we can find out if employee X spoke to any of the Individual Defendants about this demand problem. So, it is evidence that will lead to very probative evidence of scienter.

Judge: But, scienter of unnamed defendants.

Harwood: No, it will lead . . . it will be probative of scienter of named defendants, because by identifying these people who are trading, or identifying a group of people who have knowledge, and then we can drill down with that group of people, we can probe further with them. We can find out who they’ve been communicating with.


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Judge: And what is your request exactly? I’ve forgotten how you worded it.

Harwood: Exact wording I’m going to have to look up.

Besirof: I can read it now.

Judge: All right. Yes.

Besirof: With respect to (and then it names three individuals): A) Any and all of their personal files, diaries, appointment calendars. B) All documents memorializing purchase or sale of stock from JDSU. C) All documents concerning their decision to purchase or sell JDSU stock. And I’m paraphrasing that.

Judge: All right, and this is three individuals only?

Harwood: These are all directors and officers, these three individuals . . .

Judge: And three, three?

Harwood: Yes, in Request 51.

Judge: And, is the time period limited to the class period regarding the purchase and sale?

Harwood: We’ve, you know we’ve been arguing about the time period, so . . .

Judge: Right, I know it.

Harwood: We’ve asserted it’s the entire relevant time period. But we’re talking about trades so sure we’ll talk — these people could be limited to the class period absolutely.

Judge: All right. Well all right, you can find out these three individuals . . .

Harwood: But I think that they’re . . .

Judge: Excuse me. Find out for these three individuals their purchase or sales of stocks in any documents as to why they did it during the class period.

Harwood: I’m not sure that that is the entire set of people whose stock trades were . . .

Judge: All right, well let me put it this way, if it’s a lot of people I’m going to deny it and make you limit it. I mean, I just don’t think some kind of completely scatter shot, you know, “see what we can find,” has support in the cases or in logic. But, there is some very high level people that you have reason to suspect, as you allege — you do allege in your complaint


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that certain directors sold substantial portions, I assume that’s those three people.

Harwood: Yes. Those three people, and I do believe there were others. I think we were talking about — if you’ll just give me a moment . . .

Besirof: Your Honor I don’t believe there are any others and they already have the Forms 4 for these three people.

Judge: All right, well — they already have the forms of sale on these three people?

Harwood: What do you mean by the Forms?

Besirof: The Forms 4.

Harwood: Forms 4?

Judge: Right, I guess you said you were going to produce that.

Harwood: We requested all documents in JDS’s possession relating to the stock trades.

Judge: Well, and I just . . .

Harwood: Relating to these three people.

Judge: I just ruled, I said prior to this further discussion I said you could get the sales, the trades, which apparently you’re producing Form 4 which will have that, and also documents that show why the decision to sell was made at that point, if any exist.

Okay, now 33 and 35 which have to do with recognition of revenues, the over a million dollars shipments, etc., etc. This is highly relevant information and so, you know quite a bit of effort has to be made to respond to it. So, you know, a lot of objections had been made about how burdensome, and I could see it could be burdensome. But, the problem I have is, you know it seems like, just the answer seems to be therefore we can’t do it at all, rather than coming up with some way to get the information. I mean, for example, to say we will only look at — we won’t look at — we’ll only look at documents on their face. If that’s the case, you know, then the threshold probably can’t just be a million dollars. I mean if you’re only going to look at on the face, then you’re probably going to have to say anything that seems like it could be something, potentially could be close to a million dollars. I mean, in other words, that’s too limited because then something could say, and you know 999,999 and you don’t produce it, I mean it’s a way of, it’s allowing the burdensome to potentially gut the meaningful discovery and that, that


sf-1986475 16

can’t be done. There really isn’t a declaration on some of this. So, again, I feel as if, you know, there has been breakdown or not even a commencement of a meaningful meet-and-confer on this. I basically would be granting this subject to, you know, reasonable limitations on how it’s done so that it’s not unduly burdensome.

Besirof: Could I address this, Your Honor? I think it would be helpful if I gave the Court an example of how this might play out. When a product is made at JDSU it has a document called a “traveler” that follows the document during the manufacturing process. The traveler won’t have any indication of who document, or the product was sold to, or the dollar amount, or what other products it was grouped in to create shipment. And, so we would be in the position, and the traveler is just one example of this. But we would be in the position of trying to match every traveler, so every scrap of paper from every product to see if that product was somehow grouped with another product creating an aggregate sale of a million dollars, then determining, did this product or these groups of products, were they ever returned, was their shipment ever delayed? You know, every e-mail that references a shipment with no dollar amount . . .

Judge: All right, so maybe they can’t be done that way, but there may be some other way. I think that, again, this is an example, you reference Lucent and Nortel, maybe you have reason to believe those were the customers that this particularly happened with.

Harwood: We believe that it did happen with those customers, and that they were large customers, but we don’t have a crystal ball, we don’t have access to the records.

Judge: Right, but what I’m saying is I think they’ve thrown out some plausible reasons why there are certain things that they can’t — that it doesn’t make sense to search that way. On the other hand, I suspect that there are other ways to do it. And that, take your best shot that you can — again, it’s a question of phasing, you know, figure out if you have reason to suspect, I’m not saying you can’t get discovery about anybody else, but I’m saying why don’t you start with the ones you really think the smoking guns are probably there, and then talk about what documents they have, and you know they can make things available, have your experts meet-and-confer about how you could do this. I think that the defendants are going to have to do more than they’ve offered to, absolutely. I think this is highly relevant and some significant resources ought to be spent on this. But, you’ve also raised some examples of why it may be hard to do. You may have to rephrase this. Maybe, you know, I think the million trigger was — sounded like a good way to do it, it may turn out that they don’t track it by a million but they track it by some other amount, or type of product which tends to cost a million, or what — I don’t know.


sf-1986475 17

Harwood: Well that’s right, Your Honor, I mean we were trying to come up with a proposal that was reasonable.

Judge: Okay, and I think it was a good one, and I think that your response so far is inadequate, and I’m ordering you to do more, and again, you have to meet-and-confer and try to come up with something. I am — on now in particular, I don’t know if we’ve talked about it but there is the — this is the case with the Redbook?

Harwood: Yes.

Judge: And somebody who is a . . .

Harwood: . . . Pitre.

Judge: Pitre.

Harwood: Thomas Pitre.

Judge: Have you gotten, I mean I think that those things are obviously highly relevant to all the people he sent the e-mail to, all their responses, this Redbook group, etc. Has that all been — and it’s in the schedule I think, but I mean that sort of thing ought to be produced right away, has it been done yet? It’s relatively limited, it’s highly probative.

Harwood: It’s incomplete.

Judge: All right. Well, whatever is incomplete about it should be done immediately. See, this is the kind of thing I find that defendants are making a lot good arguments about burdensomeness and so on, and some of your arguments of relevance I think are well taken. On the other hand, on the really relevant stuff, I think you are dragging your feet and not coming up with counter/alternate proposals. If you say something is too burdensome, then what can you do, that are meaningful?

Besirof: Your Honor . . .

Judge: So, I feel as if, and amidst well taken objections you’re also hiding the ball on what really they should be entitled to, and quickly.

Besirof: May I speak to that, Your Honor?

Judge: Yeah.

Besirof: With regard to Thomas Pitre who is the — this author of the e-mail that the Court is referencing, we have produced on time all of the e-mails that we have processed for Mr. Pitre. It’s 2,865 e-mails. We told the plaintiff “here is everything we have produced to date,” there is this group of


sf-1986475 18

tapes — of electronic media, of litigation back-up tapes that we believe might contain some more Thomas Pitre e-mail. In light of what Your Honor said last time we were here on June 21st, we were transparent about the issue. We said there are these tapes, our vendor, our electronic vendor is working on these particular tapes, and we’ve instructed our vendor to work, you know, literally 24 hours a day, seven days a week, with three to five people with the tapes being processed, in constant use. And we told Plaintiffs that in meet-and-confer. And we said not only that, but we have a work-around, that we know that the Company did emergency back-up tapes, disaster recovery back-up tapes that are done very closely in time to the litigation tapes that are at issue. There are 256 of these emergency disaster recovery back-up tapes. We will restore these; we won’t ask for any costs in restoring these because we want you to have these tapes, and we told them that was in process, we were working as fast as we can. In meet-and-confer, the plaintiff said “just give us all the tapes.” Well, these are the tapes of the entire company of every electronic media at this point in time that haven’t been reviewed at all. And we said “no, our vendor is working on it as fast as possible.” We were being transparent about it. In the papers that have been filed with this Court, the statement was made that our vendor — we informed plaintiff that our vendor was slow and we refused to take their suggestion of a vendor who could move quickly. So, this is an instance, Your Honor, where we were transparent. We gave all the facts to plaintiff, we met-and-conferred in gave faith. Plaintiff knows the situation of what’s going on with these tapes.

Harwood: And we made a constructive proposal Your Honor which is that if their vendor is unable to get through these tapes promptly and we have a vendor who can.

Judge: Well, so where is your vendor now on it?

Besirof: The vendor has anticipated today that it will finish cataloging these 256 backup tapes that we gave them about two weeks ago we gave them the tapes. I’m not a technologist, but I’m informed the issue is, with these 256 tapes, it’s kind of like putting a puzzle together, where to catalog them they have to figure out what tape goes where, and it took them about two weeks.

Judge: Well, let me say this, I’ve got people who have been waiting here since 10:00. I think — I don’t have, you know, more time now to go through this with you. Again, I think you need to have a better meet-and-confer. And if you can’t resolve it, have competing declarations of your experts about how long it’s going take, how long it should take, exactly what costs, etc. But, it seems to me that I would agree with the plaintiff that if your expert can’t or vendor can’t get it done quickly in a matter of a few weeks and really give them the information, then maybe it should just be turned over. And I didn’t have time to read Judge Wilkin’s order that you


sf-1986475 19

cite about the clawback, etc. But I am the discovery judge here, and I think clawbacks and things of that nature can work, and I don’t see why we couldn’t do it here. So if that’s the problem and holding it all up in terms of the privilege, you know I think we can craft an order that would resolve that. So I don’t know if that’s the problem. But I — you know, the — I’m very concerned that the parties just don’t seem to be able to resolve anything without incredible amounts of assistance from the Court. And I’m trying to set the framework for now, hearing how I look at things, if you can self-police in light of that. That’s what I would like to happen.

Harwood: We will make that effort, Your Honor, there is one point I think we do need to address though before we adjourn.

Judge: Yes.

Harwood: We made a request that an order issue requiring defendants to complete their production in response to our first document demand, which has now been pending for 500 — five-and-a-half months, I’m sorry, five-and-a-half months.

Judge: Right.

Harwood: We requested that they be ordered to complete their production within four weeks from this hearing.

Judge: Right.

Harwood: I do think the defendants need a deadline.

Judge: I think that’s true, and yet I don’t want to set an arbitrary deadline. But I do think there needs to be a deadline. I thought the schedule made progress, and was an improvement but in some places was too vague.

Besirof: Your Honor, I will submit that we will propose a new schedule to plaintiff for the next, let’s say through October 31st. We’ll submit that within one week to them and meet-and-confer in good faith on it.

Judge: Well, I agree with that but, I guess what I think, I think there has got to be some kind of mechanism, and if it gets — maybe some kind of reporting once a week about what you’ve you done, what you’ve produced, an update, not just the schedule but an update. Are you meeting it, what could be advanced, what’s been done, you know quantifying that you’ve met it. I think it’s still too vague. If it gets to the point where you really need somebody to give you advice constantly about the pace of this and how much to spend and so on, I’m going to have to recommend a special master, because I mean, I just don’t have the time. I could do it, but then I can’t do anything else. You probably saw the case right before you, you know, verging on that kind of demand on the Court’s resources . . .


sf-1986475 20

Harwood: Yes.

Judge: . . . and that’s two cases. So . . .

Harwood: Well, I think it’s a good idea to have weekly reporting. I still, I’m a little unclear on what Mr. Besirof just offered though. Is October 31 to be the deadline for completing the production in response to the first document demand? Or, is that just a date by which you will give us some undefined amount of material? It just wasn’t clear to me. We had requested four weeks from today, which would be mid-September.

Judge: Yes. Well and they’ve thrown up their hands . . .

Harwood: And they’ve said some time in January.

Judge: . . . and say it would be in what?

Harwood: They said sometime in January 2006, which I think is just too long. That would be ten months.

Judge: Which is basically — and I do find defendants didn’t account for the fact that we’re already been in a lapse of four or five months. So, I mean you kept talking about henceforth, but what’s been going on for those four-and-a-half months?

Besirof: I’d be happy to address what we’ve done since we were last . . .

Judge: Well, I don’t — no. There isn’t time for that now, and it was addressed in your papers, but I mean I think it kept being ignored in the idea that we can’t possibly — but what I’m going to say is, you know, I cannot make a rational decision at this point about what should be produced, when, of that. But I think a very significant amount of the production should be completed within a month and there should be very good reasons why what remains can’t be produced until January. All of it certainly would be done by then, and you should meet and confer and propose a schedule — tighten up the schedule you already have and prove it. Give weekly reports to the plaintiffs that are meaningful, and beyond that I think you have to start, you know — the plaintiffs have to look at you know, I’m not going to just have them engage in, you know, absolute, whatever amounts of — with no reference to the burdensomeness or what makes sense to search. And, on the other hand, they have to start, I think cooperating so it gives you information so if they say we can’t do it this way, but you explain how you can do it.

Harwood: That sounds fair, Your Honor. It’s hard for us to propose how they should search their documents.


sf-1986475 21

Judge: Well, that’s right, so I mean I think you have to not just say no, but come up with another way. All right. So, do you want to prepare an order on this?

Harwood: Yes.

Judge: All right. Anything further then?

Besirof: No, Your Honor, thank you.

Judge: Thanks.


Exhibit 3


MELVIN R. GOLDMAN (BAR NO. 34097) JORDAN ETH (BAR NO. 12 16 1 7) TERRI GARLAND (BAR NO. 169563) ALISON M. TUCHER (BAR NO. 171 363) PHILIP T. BESIROF (BAR NO. 185053) RAYMOND M. HASU (BAR NO. 200058) MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 941 05-2482 Telephone: (4 15) 268-7000 Facsimile: (41 5) 268-7522 [email protected]

Attorneys for Non-Party HARRY DEFFEBACH



OAKLAND DIVISION


This Document Relates to: All Actions

Master File No. C-02-1486 CW

NON-PARTY HARRY DEFFEBACH'S OBJECTIONS TO SUBPOENA

sf-1 909665


Pursuant to Rule 45 of the Federal Rules of Civil Procedure, set forth below are HARRY

DEFFEBACH's ("Mr. Deffebach") written objections to the subpoena duces tecurn dated

March 10,2005 by Lead Plaintiff. Mr. Deffebach reserves his right to supplement these

objections as additional information becomes available, to move to quash, or otherwise seek

judicial relief.

GENERAL OBJECTIONS

1. Mr. Deffebach makes the following general objections in addition to the specific

objections to specific document requests, as set forth below. Each of these general objections is

incorporated into and made a part of Mr. Deffebach's response to each and every request set forth

in the subpoena. Mr. Deffebach's objections have special force because they are advanced by a

non-party. See, e.g., Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422,424 (Fed.

Cir. 1993).

2. Mr. Deffebach is no longer employed by JDSU, and he therefore has no access to

JDSU property, including files used or maintained in the performance of his former duties for

JDSU.

3. Mr. Deffebach objects to each and every request to the extent that it seeks

documents that are not relevant to the claim or defense of any party.

4. Mr. Deffebach objects to each and every request to the extent that it purports to

impose requirements or discovery obligations that exceed those imposed by the Federal Rules of

Civil Procedure or any other applicable rule, law, or regulation.


documents protected from discovery by the attorney-client privilege, the attorney work-product

doctrine, or any other applicable privilege. If any document protected from discovery by any

privilege is inadvertently revealed, it is not intended to and shall not operate as a waiver of these

objections.


documents containing proprietary and confidential business and financial information that

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Mr. Deffebach has a duty to protect, including information constituting or pertaining to trade

secrets, personnel information, or competitively sensitive information. Disclosure of such

information would be harmful to legitimate business interests.


documents that include information subject to confidentiality agreements with third parties.


documents that are not in Mr. Deffebach's possession, custody, or control.


documents in the public domain, equally available from the parties to the litigation, or available

from other sources.

10. Mr. Deffebach objects to the "Definitions," "Relevant Period," and "Instructions"

provided to the extent they are overly broad, unduly burdensome, vague, or ambiguous.

1 1. Mr. Deffebach objects to Definition 2 ("Financial statements") as vague,

ambiguous, and overbroad. Mr. Deffebach also objects to Definition 2 to the extent it seeks

documents that are not in his possession, custody, or control.

12. Mr. Deffebach objects to Definition 7 ("Pitre") as vague and ambiguous with

respect to the phrase "Manager of Demand Manager."

13. Mr. Deffebach objects to Definition 8 ("Pitre E-mail") as vague and ambiguous.

Although the definition recites that the "Pitre E-mail" is "annexed" to Schedule A, Lead Plaintiff

has failed to include an attachment to Schedule A.

14. Mr. Deffebach objects to Definition 11 ("Communication") to the extent it is

broader in scope than the definition provided by applicable rule, law, or regulation.

15. Mr. Deffebach objects to Definition 12 ("Concerning") to the extent that it requires

the application and disclosure of the subjective legal judgment of Mr. Deffebach's attorneys and

would require a conclusion or opinion of counsel in violation of the attorney work product

doctrine.

16. Mr. Deffebach objects to the definition of "Relevant Period" as excessively broad.

Beginning the "Relevant Period" on January 1, 1999, renders each of these requests excessively

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broad because the purported class period in this action does not begin until October 28, 1999.

Ending the "Relevant Period" on Mr. Deffebach's response date renders each of these requests

excessively broad because the purported class period ends on July 26,2001. Mr. Deffebach

further objects to the definition of "Relevant Period to the extent that it seeks "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."

17. Mr. Deffebach objects to Instruction No. 1 to the extent Plaintiff seeks documents

that are not in Mr. Deffebach's possession, custody, or control.

18. Mr. Deffebach objects to Instruction Nos. 2-4 to the extent Plaintiff attempts to

impose obligations on Mr. Deffebach that are not required by applicable law.

19. Mr. Deffebach objects to Instruction No. 5 to the extent that it requires

Mr. Deffebach to provide a privilege log concurrently with these Objections. If required,

Mr. Deffebach will prepare and submit a privilege log after an adequate and reasonable

opportunity to conduct a privilege review. Mr. Deffebach further objects to this Instruction to the

extent that it purports to require information beyond that which is required by Rule 45(d) of the

Federal Rules of Civil Procedure or any other applicable rule, law, or regulation.

20. Mr. Deffebach objects to Instruction No. 6 to the extent Lead Plaintiff attempts to

impose obligations on Mr. Deffebach that are not required by applicable law.

21. In light of the time period, scope of requests, and categories of documents,

Mr. Deffebach will incur significant time and expense in searching for, collecting, and making

available the requested documents. As a non-party to the litigation, Mr. Deffebach is entitled to

compensation for these costs.

22. Nothing contained in those general and specific objections constitutes nor should

be construed as an admission or acknowledgment as to the admissibility, materiality, or relevance

of any information sought through this subpoena.

23. Agreeing to produce documents does not mean that responsive documents exist, or

that they are in Mr. Deffebach's possession, custody, or control. It represents only that

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Mr. Deffebach will produce responsive documents if he has them, if they can be located with

reasonable diligence, and if they are not otherwise protected from disclosure.

SPECIFIC RESPONSES AND OBJECTIONS

In addition to the foregoing General Objections applicable to all requests for production,

each of which is hereby incorporated in all of the following responses, Mr. Deffebach makes the

following specific objections:

REQUEST NO. 1:

All your electronic mail concerning JDS during the Relevant Time Period, including all

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

any storage device or in storage.

OBJECTIONS TO REQUEST NO. 1:

Mr. Deffebach incorporates his general objections by reference. Mr. Deffebach further

objects to this Request as overbroad and unduly burdensome as it seeks all email concerning

JDSU regardless of subject matter, and therefore is not tailored to the claims or defenses of any

party to this litigation. Mr. Deffebach further objects to this Request to the extent the Request

seeks documents protected by applicable privacy rights.

REQUEST NO. 2:

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 JDS

products, and documents concerning manufacturing, inventory, revenue, sales, earnings, figures

and forecasts.


Mr. Deffebach incorporates his general objections by reference. Mr. Deffebach also

objects to this Request because it is vague and ambiguous, especially with respect to the term

"figures," and fails to describe the documents sought with reasonable particularity.

To the extent Mr. Deffebach's general and specific objections (including scope and

relevant time period) can be resolved, Mr. Deffebach agrees to produce documents that discuss

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sf- 1909665


JDSU's financial results, projected or actual revenues, demand for products, inventory, goodwill,

accounting policies, or restatements of financial results.

REQUEST NO. 3:

All documents concerning any communications, presentations, conference calls, meetings

or follow-up calls (including but not limited to any scripts, transcripts, press releases, tapes or

videos prepared in connection with, or prepared as a result of, such calls) with any of JDS's

security holders, securities analysts, financial analysts, institutional investors, financial

publications, news reporters, journalists, money and portfolio managers, brokers, stock traders or

investment bankers concerning JDS's business during the Relevant Time Period.



objects to this Request as overbroad and unduly burdensome as it is not tailored to the claims or

defenses of any party to this litigation. Mr. Deffebach further objects to this Request to the extent

the Request seeks documents protected by applicable privacy rights.


relevant time period) can be resolved, Mr. Deffebach agrees to produce documents discussing

communications, presentations, calls, or meetings with JDSU's security holders, securities

analysts, financial analysts, institutional investors, financial publications, news reporters,

journalists, money and portfolio managers, brokers, stock traders or investment bankers where the

following subjects were discussed: JDSU's financial results, projected or actual revenues,

demand for products, inventory, goodwill, accounting policies, or restatements of financial

results.

REQUEST NO. 4:

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.




objects to this Request as overbroad and unduly burdensome as it seeks all documents concerning

any meeting of JDSU's Board of Directors regardless of subject matter, and therefore is not

tailored to the claims or defenses of any party to this litigation.


relevant time period) can be resolved, Mr. Deffebach agrees to produce minutes of, and materials

distributed at, meetings of the Board of Directors, to the extent that they discuss: demand for

JDSU's products; actual or forecasted financial results; efforts to expand or contract

manufacturing capacity or headcount; revenue recognition; inventory levels; goodwill; accounting

practices; forecasting of revenues or sales; financial statements; financial reporting; or mergers

with SDL, OCLI, or E-TEK.

REQUEST NO. 5:

All documents concerning or memorializing your purchase or sale of JDS stock or

exercise of JDS stock options during the Relevant Time Period.





the Request seeks documents protected by applicable privacy rights. Mr. Deffebach is not a party

to this litigation and his trading in JDSU securities is therefore irrelevant. As a former officer of

JDSU, Mr. Deffebach's holdings and transactions in JDSU securities were reported to the SEC on

Forms 4, which are publicly available.

REQUEST NO. 6:

All documents concerning your decision to purchase or sell JDS stock or exercise JDS

stock options during the Relevant Time Period, including, but not limited to, any document

supporting any contention that your sale of JDS stock or exercise of any JDS stock options during

the Relevant Time Period:

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(a) Was consistent with your prior trading history;

(b) Was otherwise pursuant to any pre-planned program or divestiture; or

(c) Otherwise supports any reason for having sold stock or exercised JDS stock

options.




defenses of any party to this litigation. Mr. Deffebach further objects to the Request which

purports to seek a "contention" of a non-party. Mr. Deffebach further objects to this Request to

the extent the Request seeks documents protected by applicable privacy rights.

REQUEST NO. 7:

All documents concerning any procedures established by JDS regarding the purchase or

sale of any of its securities by any of its officers or employees.







relevant time period) can be resolved, Mr. Deffebach agrees to produce JDSU's written policies

and practices governing the sale of JDSU securities by its officers, directors, and employees.

REQUEST NO. 8:

All your notes, employee handbooks, calendars (personal and business), policy manuals,

and other documents relating to JDS during the Relevant Time Period.



objects to this Request as overbroad and unduly burdensome as it seeks all documents relating to

JDSU regardless of subject matter, and therefore is not tailored to the claims or defenses of any

7

sf-1 909665


party to this litigation. Mr. Deffebach also objects to this Request because it is vague and

ambiguous, especially with respect to the term "policy manuals," and fails to describe the

documents sought with reasonable particularity. Mr. Deffebach further objects to this Request to

the extent the Request seeks documents protected by applicable privacy rights.

REQUEST NO. 9:

All documents concerning the Pitre Email.


Mr. Deffebach incorporates his general objections by reference, including without

limitation General Objection No. 13. Mr. Deffebach further objects to this Request as overbroad

and unduly burdensome as it is not tailored to the claims or defenses of any party to this litigation.



the Pitre Email.

REQUEST NO. 10:

All documents concerning the Redbook, preparation of the Redbook, or the Redbook

Team, including, without limitation, all Redbooks prepared during the Relevant Time Period.




defenses of any party to this litigation. Mr. Deffebach also objects to this Request because it is

vague and ambiguous, especially with respect to the terms "Redbook and "Redbook Team," and

fails to describe the documents sought with reasonable particularity.

REQUEST NO. 11:

All documents concerning the potential for or existence of a downturn in demand for JDS

products during the Relevant Time Period.




8

sf-1 909665


defenses of any party to this litigation. Mr. Deffebach also objects to this Request because it is

vague and ambiguous, especially with respect to the terms "potential" and "downturn," and fails

to describe the documents sought with reasonable particularity.


relevant time period) can be resolved, Mr. Deffebach agrees to produce documents that discuss a

projected or actual decrease in demand for JDSU products.

REQUEST NO. 12:

All documents, policies, handbooks, and notes concerning shipment of JDS products

during the Relevant Time Period, including, but not limited to, the shipment of JDS products to

temporary storage units.



objects to this Request as overbroad and unduly burdensome as it seeks all documents concerning

all shipments of JDSU's products.

REQUEST NO. 13:

All documents, policies, handbooks, and notes concerning JDS's recognition of revenue

during the Relevant Time Period.




defenses of any party to this litigation.



JDSU's recognition of revenue.

REQUEST NO. 14:

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.





defenses of any party to this litigation.



JDSU's write-down of inventory for the quarter ended June 30,2001, as announced on July 26,

2001.

REQUEST NO. 15:

All documents concerning JDS's company-wide "re-alignment plan" or "Global

realignment program" during the Relevant Time Period.




defenses of any party to this litigation. Mr. Deffebach further objects that the Request is vague

and ambiguous, especially with respect to the undefined phrases "re-alignment plan" and "Global

realignment program."



JDSU's "re-alignment plan" or "Global realignment program."

REQUEST NO. 16:

All documents concerning the implementation of cost-cutting measures at JDS, including

but not limited to company downsizing, large scale layoffs, plants running at less than full

schedule, reducing plant production days, firing temporary staff, limiting or halting overtime

authorization and reducing employee hours at any JDS location.


Mr. Deffebach incorporates his general objections by reference. Mr. Deffebach hrther


10

sf-1909665



and ambiguous, especially with respect to the undefined phrase "large scale layoffs."

Mr. Deffebach further objects to this Request to the extent the Request seeks documents protected

by applicable privacy rights.



JDSU's reductions in workforce, facilities, schedules, hours, or production.

REQUEST NO. 17:

All documents and any customer complaints (however denominated) 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 of

JDS products.


Mr. Deffebach incorporates his general objections by reference. Mr. Deffebach hrther



and ambiguous, especially with respect to the terms "overshipment of JDS products," "premature

shipment of JDS products," "delayed deliveries of JDS products," "delaying of booking orders,"

and "shipping products on cancelled orders," and fails to describe the documents sought with

reasonable particularity. Mr. Deffebach also objects to this Request to the extent that it requires

the creation of a summary or other new document. Mr. Deffebach also objects to this Request to

the extent that it would require the disclosure of the subjective legal judgment of Mr. Deffebach's

attorneys and would require a conclusion or opinion of counsel in violation of the attorney work

product doctrine. Specifically, to determine whether documents concern products that were

shipped on a delayed or cancelled order, Mr. Deffebach's counsel would have to match each

potentially relevant document to a purchase order, a shipping invoice, or other paperwork, and

then determine whether the set of documents relates to an order described in the request.

11

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delayed or premature shipments of JDSU products, or shipments of JDSU products made on

cancelled orders.

REQUEST NO. 18:

All documents concerning any potential or actual change or restatement of JDS' financial

statements.





and ambiguous, especially with respect to the term "change . . . of JDS' financial statements," and




the actual or contemplated restatement of JDSU's financial statements.

REQUEST NO. 19:

All documents concerning any communications you had with any government agency

(including the SEC) regarding JDS.





and ambiguous.


relevant time period) can be resolved, Mr. Deffebach agrees to produce communications he had

with any governmental agency regarding JDSU's accounting practices or financial reporting.


REQUEST NO. 20:

All documents concerning any communications between you and any of the Individual

Defendants, JDS Employees, or any current or former officer or director of JDS Uniphase.


Mr. Deffebach incorporates his general objections by reference. Mr. Deffebach fkrther


defenses of any party to this litigation, and because it seeks all documents concerning

communications, regardless of subject matter, content, or time period. Read literally, the Request

seeks all communications with Mr. Deffebach's co-workers at JDSU, with whom Mr. Deffebach

may have had contact every business day regarding numerous topics unrelated to the present

action. Mr. Deffebach further objects to this Request to the extent the Request seeks documents

protected by applicable privacy rights.

REQUEST NO. 21:

All agreements between you and JDS, including employment agreements, severance

agreements, confidentiality agreements, credit agreements, loan agreements, compensation or

bonus plans, and any drafts thereof.

I//

/I/




objects to this Request as overbroad and unduly burdensome as it is not tailored to the claims or I



Dated: April 1 1, 2005 MELVIN R. GOLDMAN JORDAN ETH TERRI GARLAND ALISON M. TUCHER PHILIP T. BESIROF RAYMOND M. HASU MORRISON & FOERSTER LLP

By: Philip T. Besirof

Attorneys for Non-Party HARRY DEFFEBACH


Exhibit 4


MELVIN R. GOLDMAN (BAR NO. 34097) JORDAN ETH (BAR NO. 12 16 17) T E R N GARLAND (BAR NO. 169563) ALISON M. TUCHER (BAR NO. 17 1363) PHILIP T. BESIROF (BAR NO. 185053) RAYMOND M. HASU (BAR NO. 200058) MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 941 05-2482 Telephone: (41 5) 268-7000 Facsimile: (4 1 5) 268-7522

CALENDARED

[email protected] ' O R R I s 0 ~ & FOERSTER

Attorneys for Non-Party EITAN GERTEL

MAR 3 0 2005 FOR DA

BY*--



OAKLAND DIVISION

In re JDS UNIPHASE CORPORATION SECURlTIES LITIGATION


Master File No. C-02-1486 CW

NON-PARTY EITAN GERTEL'S OBJECTIONS TO SUBPOENA

Non-Party Eitan Gcrtel's Objections to Subpoena Master File No. C-02-1486 CW 1 sf-I900998


Pursuant to Rule 45 of the Federal Rules of Civil Procedure, set forth below are EITAN

. GERTELYs ("Mr. Gertel") written objections to the subpoena duces tecum dated March 1,2005

by Lead Plaintiff. Mr. Gertel reserves his right to supplement these objections as additional

information becomes available, to move to quash, or otherwise seek judicial relief.

GENERAL OBJECTIONS

1. Mr. Gertel makes the following general objections in addition to the specific


incorporated into and made a part of Mr. Gertel's response to each and every request set forth in

the subpoena. Mr. Gertel's objections have special force because they are advanced by a non-

party. See, e.g., Katz v. Batavia Marine & Sporling Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir.

1 993).

2. Mr. Gertel objects to each and every request to the extent that it seeks documents

that are not relevant to the claim or defense of any party.

3. Mr. Gertel objects to each and every request to the extent that it purports to impose

requirements or discovery obligations that exceed those imposed by the Federal Rules of Civil

Procedure or any other applicable rule, law, or regulation.


protected from discovery by the attorney-client privilege, the attorney work-product doctrine, or

any other applicable privilege. If any document protected from discovery by any privilege is

inadvertently revealed, it is not intended to and shall not operate as a waiver of these objections.


containing proprietary and confidential business and financial information, including information

constituting or pertaining to trade secrets, personnel information, or competitively sensitive

information. Disclosure of such information would be harmful to Mr. Gertel's legitimate

business interests.

6 . Mr. Gertel objects to each and every request to the extent that it seeks documents

that include information subject to confidentiality agreements with third parties.

Non-Party Eitan Gertel's Objections to Subpoena Master File No. (2-02-1486 CW sf- 1900998



that are not in Mr. Gertel's possession, custody, or control.


in the public domain, equally available from the parties to the litigation, or available from other

sources.

9. Mr. Gertel objects to the "Definitions," "Relevant Period," and "Instructions"


10. Mr. Gertel objects to Definition 1 ("Financial statements") as vague, ambiguous,

and overbroad. Mr. Gertel has no obligation to search for or produce documents that are not in

his possession, custody, or control.

1 1 . Mr. Gertel objects to Definition 9 ("Communication'") to the extent it is broader in

scope than the definition provided by applicable rule, law, or regulation.

12. Mr. Gertel objects to Definition 10 ("Concerning") to the extent that it requires the

application and disclosure of the subjective legal judgment of Mr. Gertel's attorneys and would

require a conclusion or opinion of counsel in violation of the attorney work product doctrine.

13. Mr. Gertel objects to the definition of "Relevant Period" as excessively broad.


broad because the class period in this action does not begin until October 28, 1999.

Ending the "Relevant Period" on Mr. Gertel's response date renders each of these requests

excessively broad because the purported class period ends on July 26,2001. Mr. Gertel further

objects to the definition of "Relevant Period" to the extent that it seeks "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."

14. Mr. Gertel objects to Plaintiffs instruction that the Request "is continuous."

Mr. Gertel is a non-party and objects to any obligation seeking to impose a duty to produce

documents in perpetuity under Rule 26(e).

15. Mr. Gertel objects to Instruction No. 1 to the extent Plaintiff seeks documents that

are not in Mr. Gertel's possession, custody, or control.

Non-Party Eitan Gertel's Objections to Subpoena Master File No. C-02-1486 CW

2 sf- 1900998


16. Mr. Gertel objects to Instruction Nos. 2-4 to the extent Plaintiff attempts to impose

obligations on Mr. Gertel that are not required by applicable law.

17. Mr. Gertel objects to Instruction No. 5 to the extent that it requires Mr. Gertel to

provide a privilege log concurrently with these Objections. If required, Mr. Gertel will prepare

and submit a privilege log after an adequate and reasonable opportunity to conduct a privilege

review. Mr. Gertel further objects to this Instruction to the extent that it purports to require

information beyond that which is required by Rule 45(d) of the Federal Rules of Civil Procedure

or any other applicable rule, law, or regulation.

18. Mr. Gertel objects to Instructions Nos. 6-7 to the extent Plaintiff attempts to

impose obligations on Mr. Gertel that are not required by applicable law.


Mr. Gertel will incur significant time and expense in searching for, collecting, and making I

1 available the requested documents. As a non-party to the litigation, Mr. Gertel is entitled to

I compensation for these costs.

1 20. Nothing contained in those general and specific objections constitutes nor should

I be construed as an admission or acknowledgment as to the admissibility, materiality, or relevance

, of any information sought through this subpoena.

1 SPECIFIC RESPONSES AND OBJECTIONS I


each of which is hereby incorporated in all of the following responses, Mr. Gertel makes the


REQUEST NO. 1:

All documents concerning JDS' (a) financial statements; (b) financial results;

1 (c) projected, forecasted or actual (i) revenue, (ii) sales, (iii), sales of Products, (iv) demand for

1 Products, (v) inventory; (c) goodwill; (d) accounting policies; andlor (e) charges, adjustments or

restatements of JDSYs financial results or statements.


3 sf- 1900998



Mr. Gertel incorporates his general objections by reference. Mr. Gertel further objects to

this Request as overbroad and unduly burdensome as it is not tailored to the claims or defenses of

any party to this litigation.

To the extent Mr. Gertel's general and specific objections (including scope and relevant

time period) can be resolved, Mr. Gertel agrees to produce responsive, non-privileged documents

in his possession, custody, or control that discuss JDSU's financial results, projected or actual

revenues, demand for its products, inventory, goodwill, accounting policies, or restatements of

financial results.

REQUEST NO. 2:

All documents concerning communications between you and any of the Defendants.


Mr. Gertel incorporates his general objections by reference. Mr. Gertel hrther objects to


any party to this litigation. Mr. Gertel hrther objects to this Request as overbroad and unduly

burdensome because it seeks all documents concerning communications, regardless of subject

matter, content, or time period.

REQUEST NO. 3:

All documents in your JDS personnel file.


Mr. Gertel incorporates his general objections by reference. Mr. Gertel firther objects to


any party to this litigation. Mr. Gertcl is not a party to this action, and his employment status is

not an issue in the action. Mr. Gertel further objects to this Request to the extent the Request

seeks documents protected by applicable privacy rights. Mr. Gertel further objects that the

Request is vague and ambiguous in that it seeks documents in a JDSU personnel file, which is not

in his possession, custody, or control.


4 sf- 1900998


REQUEST NO. 4:

All documents concerning any communications between you and any of the other JDS

employees.




any party to this litigation. Mr. Gertel further objects to this Request as overbroad and unduly

burdensome because it seeks all documents concerning communications, regardless of subject

matter, content, or time period. Moreover, the definition of "JDS Employees" does not include

any current JDSU employees. Rather, "JDS Employees" consists of Mr. Gertel's current and

former co-workers at Optium, with whom Mr. Gertel may have contact every business day

regarding numerous topics unrelated to the present action.

REQUEST NO. 5:

All documents concerning performance reports, reviews, or evaluations pertaining to you.




any party to this litigation. Mr. Gertel is not a party to this action, and his performance, reviews,

and evaluations are not an issue in the action. Mr. Gertel further objects to this Request to the

extent the Request seeks documents protected by applicable privacy rights. Read literally, the

request seeks all of Mr. Gertel's performance reports, reviews, or evaluations from every

employer or business affiliation, from January 1, 1999, through the present.

REQUEST NO. 6:

All documents concerning your separation from JDS.




any party to this litigation. Mr. Gertel is not a party to this action, and his separation from JDSU

Non-Party Eitan Gertel's Objections to Subpoena Master File No. C-02-1486 CW 5 sf- 1900998


is not an issue in the action. Mr. Gertel further objects to this Request to the extent the Request


REQUEST NO. 7:

All employment agreements, including any amendments or drafts thereof, between you

and JDS, including but not limited to any compensation plan or agreement, bonus plan or

agreement, and any provision for the extension of loans or credit.




any party to this litigation. Mr. Gertel further objects to this Request to the extent the Request


REQUEST NO. 8:

All documents concerning your sale, purchasc or transfer of JDS securities, including but

not limited to Form 4s and communications with stockbrokers, investment advisors or financial

planners.




any party to this litigation. Mr. Gertel further objects to this Request to the extent the Request


REQUEST NO. 9:

All diaries, appointment calendars, and telephone logs maintained by or on behalf of you.




any party to this litigation. Mr. Gertel further objects to this Request as overbroad and unduly

burdensome because it seeks all documents regardless of subject matter, content, or time period.

Read literally, the Request seeks the personal diary--of a non-party-for a 6-year time period.


6 sf- 1900998


Mr. Gertel further objects to this Request to the extent the Request seeks documents protected by

applicable privacy rights.

REQUEST NO. 10:

All documents concerning exit interviews with or exit memoranda concerning you.




any party to this litigation. Read literally, the request seeks all of Mr. Gertel's exit interviews

with or exit memoranda from every employer or business affiliation, from January 1 , 1999,

through the present. Mr. Gertel further objects to this Request to the extent the Request seeks

documents protected by applicable privacy rights.

REQUEST NO. 11:

All documents concerning any business or financial relationship or arrangement, with any

of the Individual Defendants or JDS Employees (other than any such relationship or arrangement

at JDS).

OBJECTIONS TO REQUEST NO. 11 :

Mr. Gertel incorporates his general objections by reference. Mr. Gertel hrther objects to


any party to this litigation. Mr. Gertel further objects to this Request because the undefined term

"business or financial relationship or arrangement" is vague and ambiguous. Moreover, the

definition of "JDS Employees" does not include any current JDSU employees. Rather,

"JDS Employees" consists of Mr. Gertel's current and former co-workers at Optium. Mr. Gertel

further objects to this Request as overbroad and unduly burdensome because it seeks all

documents regardless of subject matter, content, or time period. Mr. Gertel further objects to this

Request to the extent the Request seeks documents protected by applicable privacy rights.

To the extent Mr. Gertel's general and specific objections (including scope and relevant

time period) can be resolved, Mr. Gertel agrees to produce responsive, non-privileged documents

Non-Party Eitan Gertcl's Objections to Subpoena Master File No. C-02-1486 CW

7 sf- 1900998


in his possession, custody, or control that discuss any business or financial arrangement between

Mr. Gertel and any Individual Defendant.

Dated: March 28, 2005 MELVIN R. GOLDMAN JORDAN ETH TERRI GARLAND ALISON M. TUCHER PHILIP T. BESIROF RAYMOND M. HASU MORRISON & FOERSTER I,I,P

By: Philip T. Besirof

Attorneys for Non-Party EITAN GERTEL

Non-Party Eitan Gertel's Objections to Subpocna Master File No. C-02- 1486 CW 8 sf- 1900998


ORIGINAL MELVIN R. GOLDMAN (BAR NO. 34097) JORDAN ETH (BAR NO. 12 16 17) TERRl GARLAND (BAR NO. 169563) ALISON TUCHER (BAR NO. 171 363) PHILIP T. BESIROF (BAR NO. 185053) RAYMOND M. HASU (BAR NO. 200058) MORRISON & FOERSTER LLP

425 Market Street C ~ ~ ~ ~ ~ A R E D San Francisco, California 94 105-2482 M ~ ~ ~ ~ S O N & FOE^^^^^ Telephone: (4 15) 268-7000 Facsimile: (4 15) 268-7522 MAR 3 0 2005 [email protected]

FoRDA ( S ) v Attorneys for Non-Party DAVID RENNER BY and EITAN GERTEL -Jk-

UNITED STATES DISTRlCT COURT



This Document Relates to: ALL ACTIONS

Master File No. C-02- 1486 CW

PROOF OF SERVICE

PROOF OF SERVICE

sf- 1903043


PROOF OF SERVICE

I declare that 1 am employed with the law firm of Morrison & Foerster LLP, whose address

is 425 Market Street, San Francisco, California 941 05-2482. I am not a party to the within cause,

and I am over the age of eighteen years.

I further declare that on March 28, 2005, I served a copy of:

NON-PARTY DAVID RENNER'S OBJECTIONS TO SUBPOENA

NON-PARTY EITAN GERTEL'S OBJECTIONS TO SUBPOENA

BY FACSIMILE [Code Civ. Proc sec. 1013(e)] by sending a true copy from Morrison & Foerster LLP'S facsimile transmission telephone number (41 5) 268-7522 to the fax number(s) set forth below, or as stated on the attached service list. The transmission was reported as complete and without error. The transmission report was properly issued by the transmitting facsimile machine.

I am readily familiar with Morrison & Foerster LLP'S practice for sending facsimile transmissions, and know that in the ordinary course of Morrison & Foerster LLP'S

business practice the document(s) described above will be transmitted by facsimile on the same date that it (they) is (are) placed at Morrison & Foerster ~ 1 . 1 , for transmission.

BY U.S. MAIL [Code Civ. Proc sec. 1013(a)] by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, addressed as follows, for collection and mailing at Morrison & Foerster LIP, 425 Market Street, San Francisco, California 94 105-2482 in accordance with Morrison & Foerster LLP'S

ordinary business practices.

I am readilyfamiliar with Morrison & Foerster LLP'S practice for collection and processing of correspondence for mailing with the United States Postal Service, and know that in the ordinary course of Morrison & Foerster LLP'S business practice the document(s) described above will be deposited with the United States Postal Service on the same date that it (they) is (are) placed at Morrison & Foerster 1.1.p with postage thereon fully prepaid for collection and mailing.


a BY OVERNIGHT DELIVERY [Code Civ. Proc sec. 1013(d)J by placing a true copy thereof enclosed in a sealed envelope with delivery fees provided for, addressed as follows, for collection by UPS, at 425 Market Street, San Francisco, California 94 105-2482 in accordance with Morrison & Foerster LLP'S ordinary business practices.

I am readily familiar with Morrison & Foerster LLP'S practice for collection and processing of correspondence for overnight delivery and know that in the ordinary course of Morrison & Foerster LLP'S business practice the document(s) described above will be deposited in a box or other facility regularly maintained by UPS or delivered to an authorized courier or driver authorized by UPS to receive documents on the same date that it (they) is are placed at Morrison & Foerster LLP for collection.

BY PERSONAL SERVICE [Code Civ. Proc sec. 101 11 by placing a true copy thereof enclosed in a sealed envelope addressed as follows for collection and delivery at the mailroom of Morrison & Foerster LI.P, causing personal delivery of the document(s) listed above to the person(s) at the address(es) set forth below.

I am readily familiar with Morrison & Foerster LLP'S practice for the collection and processing of documents for hand delivery and know that in the ordinary course of Morrison & Foerster I.LP'S business practice the document(s) described above will be taken from Morrison & Foerster LLP'S mailroom and hand delivered to the document's addressee (or left with an employee or person in charge of thc addressee's office) on the same date that it is placed at Morrison & Foerster LLP'S

mailroom.

BY ELECTRONIC SERVICE [Code Civ. Proc sec. 1010.61 by electronically mailing a true and correct copy through Morrison & Foerster LLP'S electronic mail system to the e-mail address(s) set forth below, or as stated on the attached service list per agreement in accordance with Code of Civil Procedure section 1010.6.

Jonathan M. Plasse, Esq. Louis Gottlieb, Esq. Barbara Hart Goodkind Labaton Rudoff & Sucharow LLP 100 Park Avenue New York, NY 1001 7-5563 (By Fax and U.S. Mail) Joseph J. Tabacco, Jr. Christopher T. Heffelfinger Jennifer S. Abrams Berman DeValerio Pease Tabacco Burt & Pucillo 425 California Street, Suite 2 100 San Francisco, CA 94 104-2205 (Via Personal Service)

Attorneys for Plaintiffs

Attorneys for Plaintiffs

2 PROOF or: SERVICE

sf- 1903043


* Michael J. Shepard Howard S. Caro Heller Ehrman White & McAuliffe LLP 333 Bush Street San Francisco, CA 941 04-2878 (By Fax and U.S. Mail)

Michael L. Charlson Heller Ehrman White & McAuliffe LLP 275 Middlefield Road Menlo Park, CA 94025 (By Fax and U.S. Mail)

Attorneys for Co-Defendant Kevin Kalkhoven

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed at San Francisco, California, this 28th day of March, 2005.

Veronica Marshall (typed) (signature)

3 PROOF OF SERVICE

sf- 1903043


Exhibit 5


MELVIN R. GOLDMAN (BAR NO. 34097) JORDAN ETH (BAR NO. 12 16 17) TERN GARLAND (BAR NO. 169563) ALISON M. TUCHER (BAR NO. 171 363) PHILIP T. BESIROF (BAR NO. 185053) RAYMOND M. HASU (BAR NO. 200058) MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (41 5) 268-7000 Facsimile: (41 5) 268-7522 [email protected]

Attorneys for Non-Party MICHAEL PHILLIPS



OAKLAND DIVISION



I Master File N o C-02-1486 CW

NON-PARTY MICHAEL PHILLIPS'S OBJECTIONS TO SUBPOENA


Pursuant to Rule 45 of the Federal Rules of Civil Procedure, set forth below are

MICHAEL PHILLIPS'S ("Mr. Phillips") written objections to the subpoena duces tecum dated

1 March 2,2005 by Lead Plaintiff. Mr. Phillips reserves his right to supplement these objections as

1 additional information becomes available, to move to quash, or otherwise seek judicial relief.

I GENERAL OBJECTIONS

1. Mr. Phillips makes the following general objections in addition to the specific I


I incorporated into and made a part of Mr. Phillips's response to each and every request set forth in

I the subpoena. Mr. Phillips's objections have special force because they are advanced by a non-

party. See, e.g., Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422,424 (Fed. Cir.

1993). I

2. Mr. Phillips is no longer employed by JDSU, and he therefore has no access to

JDSU property, including files used or maintained in the performance of his former duties for

JDSU.

3. Mr. Phillips served as the General Counsel of JDSU. Accordingly, there is a high

likelihood that the requested documents are protected from disclosure by applicable privilege.

Mr. Phillips objects to each and every request to the extent that it seeks documents protected from

discovery by the attorney-client privilege, the attorney work-product doctrine, or any other

applicable privilege. If any document protected from discovery by any privilege is inadvertently

revealed, it is not intended to and shall not operate as a waiver of these objections.

4. Mr. Phillips objects to each and every request to the extent that it seeks documents

that are not relevant to the claim or defense of any party.

5 . Mr. Phillips objects to each and every request to the extent that it purports to

impose requirements or discovery obligations that exceed those imposed by the Federal Rules of

Civil Procedure or any other applicable rule, law, or regulation.

6. Mr. Phillips objects to each and every request to the extent that it seeks documents

containing proprietary and confidential business and financial information that Mr. Phillips has a


duty to protect, including information constituting or pertaining to trade secrets, personnel

information, or competitively sensitive information. Disclosure of such information would be

/ harmful to legitimate business interests.

1 7. Mr. Phillips objects to each and every request to the extent that it seeks documents

1 that include information subject to confidentiality agreements with third parties.

~ 8. Mr. Phillips objects to each and every request to the extent that it seeks documents

that are not in Mr. Phillips's possession, custody, or control.

9. Mr. Phillips objects to each and every request to the extent that it seeks documents I

in the public domain, equally available from the parties to the litigation, or available from other I

sources.

I 10. Mr. Phillips objects to the "Definitions," "Relevant Period," and "Instructions7'


11. Mr. Phillips objects to Definition 2 ("Financial statements") as vague, ambiguous,

and overbroad. Mr. Phillips also objects to Definition 2 to the extent it seeks documents that are

not in his possession, custody, or control.

12. Mr. Phillips objects to Definition 7 ("Pitre") as vague and ambiguous with respect

to the phrase "Manager of Demand Manager."

13. Mr. Phillips objects to Definition 8 ("Pitre E-mail") as vague and ambiguous.

Although the definition recites that the "Pitre E-mail" is "annexed" to Schedule A, Lead Plaintiff

has failed to include an attachment to Schedule A.

14. Mr. Phillips objects to Definition 1 1 ("Communication") to the extent it is broader

in scope than the definition provided by applicable rule, law, or regulation.

15. Mr. Phillips objects to Definition 12 ("Concerning") to the extent that it requires

the application and disclosure of the subjective legal judgment of Mr. Phillips's attorneys and

would require a conclusion or opinion of counsel in violation of the attorney work product

doctrine.

16. Mr. Phillips objects to the definition of "Relevant Period" as excessively broad.


2

sf- 190965 1


broad because the purported class period in this action does not begin until October 28, 1999.

Ending the "Relevant Period" on Mr. Phillips's response date renders each of these requests

excessively broad because the purported class period ends on July 26,2001. Mr. Phillips further

objects to the definition of "Relevant Period" to the extent that it seeks "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."

17. Mr. Phillips objects to Instruction No. 1 to the extent Plaintiff seeks documents

that are not in Mr. Phillips's possession, custody, or control. ~

18. Mr. Phillips objects to Instruction Nos. 2-4 to the extent Plaintiff attempts to

impose obligations on Mr. Phillips that are not required by applicable law.

19. Mr. Phillips objects to Instruction No. 5 to the extent that it requires Mr. Phillips to

provide a privilege log concurrently with these Objections. If required, Mr. Phillips will prepare

and submit a privilege log after an adequate and reasonable opportunity to conduct a privilege

review. Mr. Phillips further objects to this Instruction to the extent that it purports to require

information beyond that which is required by Rule 45(d) of the Federal Rules of Civil Procedure

or any other applicable rule, law, or regulation.

20. Mr. Phillips objects to Instruction No. 6 to the extent Lead Plaintiff attempts to

impose obligations on Mr. Phillips that are not required by applicable law.


Mr. Phillips will incur significant time and expense in searching for, collecting, and making

available the requested documents. As a non-party to the litigation, Mr. Phillips is entitled to

compensation for these costs.

22. Nothing contained in those general and specific objections constitutes nor should

be construed as an admission or acknowledgment as to the admissibility, materiality, or relevance

of any information sought through this subpoena.

23. Agreeing to produce documents does not mean that responsive documents exist, or

that they are in Mr. Phillips's possession, custody, or control. It represents only that Mr. Phillips


will produce responsive documents if he has them, if they can be located with reasonable

diligence, and if they are not otherwise protected fiom disclosure.

SPECIFIC RESPONSES AND OBJECTIONS


each of which is hereby incorporated in all of the following responses, Mr. Phillips makes the


REQUEST NO. 1:

All your electronic mail concerning JDS during the Relevant Time Period, including all

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

any storage device or in storage.


Mr. Phillips incorporates his general objections by reference. Mr. Phillips further objects

to this Request as overbroad and unduly burdensome as it seeks all email concerning JDSU

regardless of subject matter, and therefore is not tailored to the claims or defenses of any party to

this litigation. Mr. Phillips further objects to this Request to the extent the Request seeks

documents protected by applicable privacy rights.

REQUEST NO. 2:

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 JDS

products, and documents concerning manufacturing, inventory, revenue, sales, earnings, figures

and forecasts.


Mr. Phillips incorporates his general objections by reference. Mr. Phillips also objects to

this Request because it is vague and ambiguous, especially with respect to the term "figures," and


To the extent Mr. Phillips's general and specific objections (including scope and relevant

time period) can be resolved, Mr. Phillips agrees to produce documents that discuss JDSU's

4

sf- 190965 1


I financial results, projected or actual revenues, demand for products, inventory, goodwill,

1 accounting policies, or restatements of financial results.

REQUEST NO. 3:

1 All documents concerning any communications, presentations, conference calls, meetings

or follow-up calls (including but not limited to any scripts, transcripts, press releases, tapes or I

videos prepared in connection with, or prepared as a result of, such calls) with any of JDS's

security holders, securities analysts, financial analysts, institutional investors, financial

publications, news reporters, journalists, money and portfolio managers, brokers, stock traders or

investment bankers concerning JDS's business during the Relevant Time Period.



to this Request as overbroad and unduly burdensome as it is not tailored to the claims or defenses

of any party to this litigation. Mr. Phillips further objects to this Request to the extent the

Request seeks documents protected by applicable privacy rights.


time period) can be resolved, Mr. Phillips agrees to produce documents discussing

communications, presentations, calls, or meetings with JDSU's security holders, securities

analysts, financial analysts, institutional investors, financial publications, news reporters,

journalists, money and portfolio managers, brokers, stock traders or investment bankers where the

following subjects were discussed: JDSU's financial results, projected or actual revenues,

demand for products, inventory, goodwill, accounting policies, or restatements of financial

results.

REQUEST NO. 4:

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.

sf- 190965 1




to this Request as overbroad and unduly burdensome as it seeks all documents concerning any

meeting of JDSU's Board of Directors rcgardless of subject matter, and therefore is not tailored to

the claims or defenses of any party to this litigation.


time period) can be resolved, Mr. Phillips agrees to produce minutes of, and materials distributed

at, meetings of the Board of Directors, to the extent that they discuss: demand for JDSU's

products; actual or forecasted financial results; efforts to expand or contract manufacturing

capacity or headcount; revenue recognition; inventory levels; goodwill; accounting practices;

forecasting of revenues or sales; financial statements; financial reporting; or mergers with SDL,

OCLI, or E-TEK.

REQUEST NO. 5:

All documents concerning or memorializing your purchase or sale of JDS stock or

exercise of JDS stock options during the Relevant Time Period.


Mr. Phillips incorporates his general objections by reference, including without limitation

General Objection No. 9. Mr. Phillips further objects to this Request as overbroad and unduly

burdensome as it is not tailored to the claims or defenses of any party to this litigation.

Mr. Phillips further objects to this Request to the extent the Request seeks documents protected

by applicable privacy rights. Mr. Phillips is not a party to this litigation and his trading in JDSU

securities is therefore irrelevant. As a former officer of JDSU, Mr. Phillips's holdings and

transactions in JDSU securities were reported to the SEC on Forms 4, which are publicly

available.

REQUEST NO. 6:

All documents concerning your decision to purchase or sell JDS stock or exercise JDS

stock options during the Relevant Time Period, including, but not limited to, any document


supporting any contention that your sale of JDS stock or exercise of any JDS stock options during

the Relevant Time Period:

(a) Was consistent with your prior trading history;

(b) Was otherwise pursuant to any pre-planned program or divestiture; or

(c) Otherwise supports any reason for having sold stock or exercised JDS

stock options.




of any party to this litigation. Mr. Phillips further objects to the Request which purports to seek a

"contention" of a non-party. Mr. Phillips further objects to this Request to the extent the Request


REQUEST NO. 7:

All documents concerning any procedures established by JDS regarding the purchase or

sale of any of its securities by any of its officers or employees.




of any party to this litigation. Mr. Phillips further objects to this Request to the extent the

Request seeks documents protected by applicable privacy rights.


time period) can be resolved, Mr. Phillips agrees to produce JDSU's written policies and practices

governing the sale of JDSU securities by its officers, directors, and employees.

REQUEST NO. 8:

All your notes, employee handbooks, calendars (personal and business), policy manuals,

and other documents relating to JDS during the Relevant Time Period.




General Objection No. 3. Mr. Phillips further objects to this Request as it seeks his notes while

employed as General Counsel to JDSU, which are protected by the attorney-client privilege and

the attorney work-product doctrine. Mr. Phillips further objects to this Request as overbroad and

unduly burdensome as it seeks all documents relating to JDSU regardless of subject matter, and

therefore is not tailored to the claims or defenses of any party to this litigation. Mr. Phillips also

objects to this Request because it is vague and ambiguous, especially with respect to the term

"policy manuals," and fails to describe the documents sought with reasonable particularity.



REQUEST NO. 9:

All documents concerning the Pitre Email.



General Objection No. 13. Mr. Phillips fiu-ther objects to this Request as overbroad and unduly



time period) can be resolved, Mr. Phillips agrees to produce documents that discuss the Pitre

Email.

REQUEST NO. 10:

All documents concerning the Redbook, preparation of the Redbook, or the Redbook

Team, including, without limitation, all Redbooks prepared during the Relevant Time Period.




of any party to this litigation. Mr. Phillips also objects to this Request because it is vague and


ambiguous, especially with respect to the terms "Redbook" and "Redbook Team," and fails to

describe the documents sought with reasonable particularity.

REQUEST NO. 11:

All documents concerning the potential for or existence of a downturn in demand for JDS

products during the Relevant Time Period.




of any party to this litigation. Mr. Phillips also objects to this Request because it is vague and

ambiguous, especially with respect to the terms "potential" and "downturn," and fails to describe

the documents sought with reasonable particularity.


time period) can be resolved, Mr. Phillips agrees to produce documents that discuss a projected or

actual decrease in demand for JDSU products.

REQUEST NO. 12:

All documents, policies, handbooks, and notes concerning shipment of JDS products

during the Relevant Time Period, including, but not limited to, the shipment of JDS products to

temporary storage units.



to this Request as overbroad and unduly burdensome as it seeks all documents concerning all

shipments of JDSU's products.

REQUEST NO. 13:

All documents, policies, handbooks, and notes concerning JDS's recognition of revenue

during the Relevant Time Period.





of any party to this litigation.



recognition of revenue.

REQUEST NO. 14:

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.




of any party to this litigation.



write-down of inventory for the quarter ended June 30,2001, as announced on July 26,2001.

REQUEST NO. 15:

All documents concerning JDS's company-wide "re-alignment plan" or "Global

realignment program" during the Relevant Time Period.




of any party to this litigation. Mr. Phillips further objects that the Request is vague and

ambiguous, especially with respect to the undefined phrases "re-alignment plan" and "Global

realignment program."



time period) can be resolved, Mr. Phillips agrees to produce documents that discuss JDSU's "re-

alignment plan" or "Global realignment program."

REQUEST NO. 16:

All documents concerning the implementation of cost-cutting measures at JDS, including

but not limited to company downsizing, large scale layoffs, plants running at less than full

schedule, reducing plant production days, firing temporary staff, limiting or halting overtime

authorization and reducing employee hours at any JDS location.





ambiguous, especially with respect to the undefined phrase "large scale layoffs." Mr. Phillips

further objects to this Request to the extent the Request seeks documents protected by applicable

privacy rights.



reductions in workforce, facilities, schedules, hours, or production.

REQUEST NO. 17:

All documents and any customer complaints (however denominated) 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 of

JDS products.





1 1

sf-1 90965 1


ambiguous, especially with respect to the terms "overshipment of JDS products," "premature

shipment of JDS products," "delayed deliveries of JDS products," "delaying of booking orders,"

and "shipping products on cancelled orders," and fails to describe the documents sought with

reasonable particularity. Mr. Phillips also objects to this Request to the extent that it requires the

creation of a summary or other new document. Mr. Phillips also objects to this Request to the

extent that it would require the disclosure of the subjective legal judgment of Mr. Phillips's

attorneys and would require a conclusion or opinion of counsel in violation of the attorney work

product doctrine. Specifically, to determine whether documents concern products that were

shipped on a delayed or cancelled order, Mr. Phillips's counsel would have to match each

potentially relevant document to a purchase order, a shipping invoice, or other paperwork, and

then determine whether the set of documents relates to an order described in the request.


time period) can be resolved, Mr. Phillips agrees to produce documents that discuss delayed or

premature shipments of JDSU products, or shipments of JDSU products made on cancelled

orders.

REQUEST NO. 18:

All documents concerning any potential or actual change or restatement of JDS' financial

statements.




of any party to this litigation. Mr. Phillips hrther objects that the Request is vague and

ambiguous, especially with respect to the term "change . . . of JDS' financial statements," and



time period) can be resolved, Mr. Phillips agrees to produce documents that discuss the actual or

contemplated restatement of JDSU's financial statements.


REQUEST NO. 19:

All documents concerning any communications you had with any government agency

(including the SEC) regarding JDS.





ambiguous.


time period) can be resolved, Mr. Phillips agrees to produce communications he had with any

governmental agency regarding JDSU's accounting practices or financial reporting.

REQUEST NO. 20:

All documents concerning any communications between you and any of the individual

Defendants, JDS Employees, or any current or former officer or director of JDS Uniphase.




of any party to this litigation, and because it seeks all documents concerning communications,

regardless of subject matter, content, or time period. Read literally, the Request seeks all

communications with Mr. Phillips's co-workers at JDSU, with whom Mr. Phillips may have had

contact every business day regarding numerous topics unrelated to the present action.



REQUEST NO. 21:

All agreements between you and JDS, including employment agreements, severance

agreements, confidentiality agreements, credit agreements, loan agreements, compensation or

bonus plans, and any drafts thereof.




General Objection No. 9. Mr. Phillips further objects to this Request as overbroad and unduly





time period) can be resolved, Mr. Phillips agrees to produce the employment agreement dated as

of September 29, 1999, between JDSU and Mr. Phillips; and the agreement regarding change of

control dated as of August 3, 1998, between JDSU and Mr. Phillips.

Dated: April 1 1,2005 MELVIN R. GOLDMAN JORDAN ETH TERRI GARLAND ALISON M. TUCHER PHILIP T. BESIROF RAYMOND M. HASU MORRISON & FOERSTER LLP

By: Philip ~ 3 e s i r o f

Attorneys for Non-Party MICHAEL PHILLIPS


Exhibit 6


03/17/2006 14:51 FAX 16175427807 BERMAN DEVALERIO

ATTORNEYS AT LAW

4tS CALIFORNIA STRLB, tlmr FLOOR SAN FRANCISCO, EA a4104

-1- (416) 433*SPW

FA*: (ale) asa-asmr

ONE LIBERTY SQUARE BOSTON, MA 08108

TEL: te t 7 ) s4e-esw FAXI (617) 64E-1 IS4

WWW.SLRMANESQ.COM

LAW@~CRMANESQ.COM

222 UKMEW AVENUE, SUITE 900

WEST PALM BEACH. FL 33601 TEL; (BOI) elE-SrK1Q

F a (6.1) 138-032a

March 17,2006 Via Fax and First Class Mail

Holly H. Tambling, Esq. Morrison & Foerster LLP 425 Market Street Sari Francisco, CA 94105

Re: In re JDS Uniphase Corporation Securities Litigation

Dear HoIly:

I write to respond to your March 1,2006 letter and to address a number of other outstanding issues with respect to the subpoenas issued to your non-party clients.

Donald Scifres

During the meet and confer process, Mr. Scifres agreed to provide a declaration verifying the trading information contained in any Form 4's he may have filed with the SEC concerning his transactions in D S U securities. 1Mr. Scifres agreed to produce the

.

declaration in response to Request 8, which sought all documents relating to Mr. Scifres transactions in JDSU securities. Lead Plaintiff requests that Mr. Scifres produce the agreed upon declaration by March 31,2006.

In your letter to Chris Heffelfmger dated August 31,2005, you stated that Mr. Scifres "has no additional documents in his possession, custody, or control that are responsive to the Requests as narrowed by our meet and confer." During the meet and confer process, Lead Plaintiff had agreed not to pursue Requests 5,6 and 13 at that time. Please clarify whether your August 31 representation that Mr. Scifres bas no further responsive documents was intended to apply to Requests 5 , 6 and 13. If Mr. Scifres does in fact have documents responsive to those requests, Lead Plaintiff now demands the production of those documents, with the understanding that we seek those documents only to the extent they touch on the matters raised in the Complaint.


03 /17 /2006 14:51 FAX 16175427807 BERMAN DEVALERIO

Holly H. Tambling, Esq. March 17,2006 Page 2 of 3

Harrv Deffebach and Michael PMlli~s

During the meet and confer process, Messrs. Deffebach and Phillips expressed a willingness to provide, in response to Requests 5 and 6, a declaration verifying the trading information contained in any Form 4's they may have filed with the SEC concerning their transactions in TDSU securities. Lead Plaintiff requests that Messxs. Deffebach and Phillips produce such declarations by March 3 1,2006.

Also during the meet and confer process, we agreed to postpone the discussion of Request 10, which seeks documents concerning the "Redbook" and related matters, pending resolution of Lead Plaintiff's motion to compel the production of similar documents from Defendants. As you may know, the Court ruled on the motion to compel in September 2005, ordering Defendants to produce "emails sent to and received by Thomas Pitre (the 'Pitre ernaiIs'), and the Redbook team (the 'Redbook emails') and those individuals on the OPSS Distribution list ('OPSS emails')." September 7,2005 Order Re: Lead Plaintiff's Motion to Compel at 2. In light of the Court's Order, Lead Plaintiff requests that Messrs. Deffebach and Phillips produce documents responsive to Request 10 to the same extent as Defendants were ordered to produce them by the September Order. Lead Plaintiff is mindful of the fact that you stated in your letter to me dated March 1,2006 that Mr. Deffebach "has no documents in his possession, custody, or control that are responsive to the Requests as narrowed by our meet and confer." If you intended this representation to appIy to Request 10, such that Mr. Deffebach has no documents responsive to the Request, please confirm that in writing. AIso, please confirm in writing that Mr. PhiIlips has completed the production of aIl documents he agreed to produce.

Eitan Gertel, Anthony Musto. Pad Suchoski and David Renner

As you noted in your March 1,2006 letter, Lead Plaintiff has had under advisement Requests 4 (Gertel3), 5,6 (not in Renne~ subpoena), 8 (Renner 7) and 10 (Remer 9). With respect to Requests 4 (Gertel3), 5,6 (not in Renner subpoena) and 10 (Renner 9), Lead Plaintiff now seeks those documents only to the extent they touch on the matters raised in the Complaint. With respect to Request 8 (Renner 7), Lead Plaintiff seeks only those documents that concern transactions in JDSU securities prompted by or otherwise connected to communications with any Defendant or other JDSU employee.

You also stated in your March I letter that I asked you to proceed to search for documents responsive to requests Nos. 2,3 (Gertel No. 4), and 9 (Renner No. 8). That is a mischaracterization of our communications. Indeed, you agreed to search for documents responsive to those requests months ago, as confirmed in your October 26,2005 letter. I


03/17/2006 14:51 FAX 16175427807 BERMAN DEVALER I 0

Holly H. Tambling, Esq. March 17,2006 Page 3 of 3

cannot conceive a reason why that search has not already occurred. Please produce any documents responsive to these requests by March 3 1,2006.

Please send all productions discussed in this letter to:

Christopher Heffelfinger Beman DeValerio Pease Tabacco Burt & Pucillo 425 California Street, Suite 2100 San Francisco, CA 94104

If you have any questions, please feel free to give me a call. Thank you for your cooperation.

cc: Christopher Heffelfinger Man: Greenspon Barbara Ifaa


Exhibit 7


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

April 7,2006

425MARKETSIREET SAN FRANCISCO CALIFORNIA 94105-2482

TELEPHONE: 415.268.7000 FACSIMILE: 415.268.7522

MORRISON FOERSTER LLP

N E W YORK, SAN FRANCISCO, LOS ANGBLBS, P A L 0 ALTO, SAN DIEGO, WASHINGTON, D.C.

DENVER, NORTHERN VIRGINIA, ORANGE COUNTY, SACRAMENTO, WALNUT CREEK, CENTURY CITY

TOKYO, LONDON, BBIJING. SHANGHAI, HONG KONG, SINGAPORE, BRUSSELS

Writer's Direct Contact 4 1 5/268-6 164

VIA FAX

Joseph C. Merschman Berman DeValerio Pease Tabacco Burt & Pucillo One Liberty Square Boston, MA 02 109

Re: In re JDS Uniphase Corporation Securities Litigation

Dear Joe:

I write to respond to your March 17,2006 letter.

Dr. Scifres

Dr. Scifies has agreed to provide a declaration confirming the trading information contained in any Fonn 4 he may have filed with the SEC as an officer of JDSU during the relevant period as narrowed by our meet and confer. You asked that Dr. Scifles provide this declaration by March 3 1,2006. As you know, the last weeks we have been busy with the JDSU Defendants' mediation brief, traveling to and attending the mediation in New York as well as the Company's continued document production. Given these events, we have not yet had a chance to contact Dr. Scifres regarding the declaration. We will contact Dr. Scifies regarding his schedule and get back to you regarding a proposed date for providing the declaration.

You have also requested that Dr. Scifies produce documents responsive to Requests 5 (personnel file), 6 (exit interviews), and 13 (performance evaluation) to the extent those documents ''touch on the matters raised in the Complaint." See March 17,2006 Letter fiom J. Merschman to H. Tambling at 1. Dr. Scifres has no documents responsive to these Requests. Please note that by providing this information neither Dr. Scifies nor his counseI is in any way agreeing that your proposed narrowing of Requests 5,6, or 13 is appropriate and is in no way waiving any objections to these Requests.


Exhibit 8


10/30 /2006 1 3 : 1 6 F A X 1.2128180477 LABATON SUCHAROW LLP

Labaton Sucharaw

October 30,2006

VlA FACSIMILE

Terri Garland, Esq, Moidson & Foerster 425 M*rket Strect S.m Francisco, CSFumh 94105-2482

Dcnr Terri:

1 writr! conccrninji the respc)nse and objections h~ subpoenas for rhosc nrrn-partics who arc represenred by M{rrtison & Foerstcr. As of thc cltrsc: of business in New York ~ I I Friday, Octobet 27,2006, wc Y C C C ~ V C ~ rcvyonses nnd objecdons to thc fc~Ur~wing nonprty subpoenas:

Wiu~ess

Carol Ann Graves

David I .ightfoor

Rick M a i M i n

S rep hanie Franlrlin

Toni McWilliams

Russell Johnson

Candy Johnston

'I'orn Gallagher

Shcllcy Pjottusiak

Harrg Deffcbach

Steve Moorc

Aljsan Rcynders

Ashok C~hanclmn

Kerry DcMorily

Ken Cmwfclrd

Michael Phillips

August 7,2006

August 7,200G

August 7,2006

August 7,2006

Augusr 7,2006 .

August 11,2006

August 16,2006

Aupst 1G,2006

Aigust 16,2006

August 21,2006

August 30,2006

September ,4,20O(i and October 4,2006

Septcmbcr 15,2006

September 15,2006 and C.ccobet 4,2006

Clctober 4,2006

Octr~bcr 12,1006


10 /30 /2006 13116 F A X 12128180477 L A B A T O N SUCHAROW LLP

Tcrri C~rLqnd, Fsq. October 30,200G Page 2

Kumiu Visvanatha Ocrober 18,2006

Leo Lefebvrc OcroLcr 2CI.2006

Bob Russell Octobcr 20,2006

As each of the nonparty and individual defendants' objections aypcar to be f k l y consistent with each orher, T address them colIectively bdow.

(McWillinms, C. Johnston, Pietrusiak, Moore, Gallagher, licynders (amcndcd), Chwford, Chandran, Dehoriy, Phillips, V i ~ v ~ w ~ d ~ a , Lefekc, and llussell); @nerd Obicc$on No. 3 (Graves, Ligl~tFooc MacMillnn, Franklin arid Dcffebach)

'lhc witnesses stare thcy will not produce documents used by them in the pcrforinance of thck dunes for JDSU bemuse rhey do not have aurhoriry to p r ~ d u c ~ &em. Ihe applicable Federal Rulcs of Civil l'rocedurc do nor impose such a Itnitation. T h e wimcsscs are obhgntcd to produce anything . in their posscssi~n, cwrody or control. Plcnsc provide authority h a t you reply upon in drhholding doc~ments on this basis.

$S-o. 4.: (Mc-Wdhms, C. Johnston, Gall~gher, I'ictrusiak, Moore, Reyndcrs (amended), Chandxan, Crawford, Dchoriry, Phillips, Visvpnntha, hfebvrc, srld KusseU); Q~&&Q&J (Gmvcs, Lightfoot; MacMillan, Franklin, Johnson and Dcffebach)

'I'hc wirnesses objcct to rhe production oE docurnellrs char contain propieta? and cc~nfidtntkl ~ U S ~ ~ E S R and bancial inf~mnauoil which rhcy have a Juty to protect. This cbbjecdon lacks any merit, as thc Scptcmber 21,2005 Order Regarcling C:onfidenuality specifically providcs rhat " n l y . . . nonparty who produces Disclosure: or Discovery Matcrirl, s h l l have the dght to designarc uu 'CONFTnRNTIAl,' or 'HlGE-1LY CONFIDEN'I'TAT.' my ptu~ccred mared it produces." Scc 9/21/05 Qrdcr 1) 4.1. Ylase let us know if you will agrcc to withdraw this objection and providc privilege logs for any docurnala withheld on this basis.

-7: (McWillbms, C. Johnston, kallaghcr, Piemsink, Moore, Reyndas (amended), Chandmn, [:rawford, Dehority, Phillips, Visvanntha, 1 .cfcbvre, and Ruscll); General Obiecrion No. 8: (Gmvcs, 1 igh~foot, MacMhn, Franklin, Johnson, XIMI 1)cffebach)

'lhe wimesses abjcct to the production of documents that seek information subject co confidentialiry agreements with third partits. Again, nonparty's; hnvc the right ro rlcsipnre documenrs ss "Confidential" under the Scpccmber 21,2005 Order Rcgbtding Confidcnriatity. Plwse let uu know if you will agree to withdraw this objection nld providc privilcgc logs for any ducumcno withhcld on rhis basis.

General Obiection No. U (Visvanstha); General Obiection No, 14 (McWillisms, (1. johnstoil, Galagher, Pietrusialcs Moore, lkynders (amcnrlcd), Chandran, Craw Fotd, Dchoriry, Phillips, Lefclvre, and kussell); General Obiection No. 15 (Dcffebach); General Obieccion No. 16 (Graves, Lighrfoot, MacMiUaa, nad Franklin)

Labaton Sucharow


1 0 / 3 0 / 2 0 0 6 13:16 FAX 1 2 1 2 8 1 8 0 4 7 7 LABATON SUCHAROW L L P

Terri Garland, Esq. Octobcr 30,2006 Page 3

' f i e wimesses object to tl~c definition of "Relevant Pcxiod" as excc?ssivcly brtmd, bur agree to produce documents for s much rlnrrowct cime period ofJuly 1, 1999 through July 26,2001 and July 27,2001 through September 30,2001 to thc cxrcnr such documents discuss activities during the Class Ycriod. We do not agree with thcvc limiauons. Magiscrate T.aps>rte previously rcjecred Defendancs' propo&~ to limit the relevant timc pcnod ro Scptcmber 30,2001 when she gnnred Connccticur's July 12,2005 Mution to Compel. Magismte Lnportc recognixcd the porrendal relevailce of documents that post-datcd Scptcmber 30,2002, but to address Ilcfcndants' burden conccrns, ordered the partics to samplc drrcumcnts crcalcd afta the CLlss Period.

Hcrc, thc witncsscs do nor object on the bnsis of hrirdcrl kc) that. a "sampling" of dociunencs is unnecessary. Thc limited volbme of documcnts these individuals will likcly h v e in thek pcrsonal possession chat aw rcxponsivc to the requests, if nay, elimillates any Lnsis for an objection bnscd on burden. It is our position that the rdwant time petind s c ~ forth in the subpoena is sufficiently narrow.

Gencrdl Objection No. 12 (Johnson); General Obicction No. 19 (McWilliarm, C. Johnston, Gallagheq Piemsiak, Mr~oxc:, Keynders, Chanhn, Crawford, Dchori ty, P u p s , Le febvrc, and Russell); General Objection No. 20 (lleffebach); General Obiection No. 21 (<;raves, Lrghtfuot, MacMiuan, and Fmnkh)

Thc witnesses scam they are entitled to compcnsadon for heir costs in sc:atching for and producing documcnts responsive ro thc subpoena. Again, the limited volurnc of dc)curncnts each of thusc wi~nesses is likely to have, if any, dncs nor give rise tn &c level of hurdcn that would entitle rhm to costs,

General (Lefebvrc and Itussell)

The wimesses object to questions ox documcnt requests conccming facts sought by JDSU's requests fnt admissions served on August 30,2006 on the basis rhac Connecticut degedly failed to timely servc its rasponscs, which it did not. We disagrcc that J1X1J's requests havc been conclusivdy esrablishcd an that basis, especially in light of the fact that I>cfcti&nts panted Connecucut an extension to scrvc its rcvponscs and chen subscqucndy reneged on that agreement on thc eve of the due drite.

Each request is objected to un the basis that it is overbroad and unduly burdefisome, among orha objections. Again, rhc limitd volume of documcnts these individuals Iikdy will have in personal possession, i f any, c~lls into question any burden concerns.

Despite thc specific objecriuns, rhcrc arc many documents for which ir appcars thc nonparties do not abject and have agreed to produce, but only on the condition chat their objcczions bc rcsolved.

Labaton Sucharow


1 0 / 3 0 / 2 0 0 6 1 3 : 1 6 F A X 12128180477 LABATON S U C H A R O W LLP

T& Garland, Ilsy. October 30,2006 Page 4

Couru have held that documents for which there is no objection shall bc produced while resolution of genuinely disputed documcnk h pending. Set In t . ~ One Dun~otfl Stc ldk,, 134 P.R.D. 4,11 (D. Mairlc 1991) (documcats to which thcrc is 11o objection shdl be produccd irnmcrlintcly). Responsive documents that are nor objectionable should bc produced i n ~ r n ~ ~ r e l y .

Ihe witnesses object to xequegt no. 11 concerning documenrs h a t reflcct sales of stock inJDS or the exercise of options for the smck ofJDS du&g the C ~ S S Period, in past, on the b~sk of individual privacy rights. It is our position hat these documents are rdrvant m the bias and crcditility of wcl~ vitncss and should bc prc'dueed.

We would like to mum and confer on these issues this wcck and are available November 2 clr November 3, prior to 200 p.m. Pacific t h e . Please ler mc know what dates work for you.

Very d y yours, A

Anthony f. Hamood Of Counsel

cc: via facsimile Christopher Heffelfinger, Esq. Tloward S. Caro, 13sq.

Sucharow


Exhibit 9


F lLE No .569 07/28 '06 17:02 I D :BERMAN DEVRLERIO FAX : 4154336382 PAGE 2j 19

Joseph J. Tabacco, Jr. (75484) Christopher T. Heffelfhger (1 18058) Nicole Iwvallee (165755) B E M A N DeVALERIO PEASE TABACCO BURT & PUCILLO

425 California Sweet, Suite 2100 San Francisco, CA 941 04 Telephone: (41 5 ) 433-3200 Facs~mile: (41 5 ) 433-6382 Email: [email protected] Erndl: [email protected] Email: [email protected]

I I Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Tmst Funds

Barbara 3. Hart Jonathan M. Plasse Anthon J. Har~ood r Michae W. Stocker LABATON SUCHAROW & RUDOFP, LLP - - - - - - -

100 Park Avenue, 12th Floor New York, NY 100 17 Telephone: (2 12) 907-0700 Facsimile: (2 12) 883-7062

Email:

Lead Counsel for Lead Plainriff Connecticut Retirement Plans and Trust Funds

NORTHERN DISTRlCT OF CALIFOWIA

OAKLAND DMSION

[C 02-1486 CW] NOTICE OF SUBPOENA TO MORRISON & FOERSTER LLP COMMANDING THE PRODUCTION OF DOCUMENTS

22

23

24

25

M RE JDS UNlPHASE COWORATION j Master File No. C 02-1486 CW SECURITIES LlTlGATION )

Class Action This Document Relates to: All Actions 1

) NOTICE OF SUBPOENA TO MORRISON & ) FOERSTER LLP COMMANDmCi THE

PRODUCTION OF DOCUMENTS


FILE No.569 07/28 '06 17 :02 1D:BERMRN DEVNER I0 FFIX : 4154336382 PRGE 3/ 19

1 ( 1 P L W E TAKE NOTICE th. pursuant to Rules 26.34 and 45 ofthe Federal Rules of Civil I 1

3 Procedu~, plaintiffs will inspect and copy the documents identified in the schedule attached to the I I I

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

4 11 accompanying subpoena that are in the possession, custody or control of the following third party: 1 PLACE OF PRODUCTION I Berman DeValerio Pease Tabacco Burt & Pucillo 425 California Street, Suite 2100 San Francisco, CA 94104

10 listed address, Or such other location as is mutually acceptable to the above-listed third party and I I

8

9

I I 1 I plaintiffs' counsel. I

Said production will talct place on or before August 18,2006 at 10:OO a.m. at the above-

12 1 1 This production is pursuant to the accompanying subpoena commanding the production o f I 13 11 documats iwed by plaintiffs' counsel on behalf ofthe United States District Court. No testimony ( 1) I / is required by the subpoena, andno one need appar fiom l r third pm a for any of the partin in

15 11 this action at this time. 1

16 / 1 PLEASE TAKE FURTHER NOTICE that the partirular above-listed third party may be held

17 in contempt of court pursuant to Fed. R. Civ. P; 45(e) if the party fails without adequate excuse to I I I 18 obey the subpoena served upon it, and that it has certain legal rights in response to plaintiffs' I I I 19 ] I nubpmra served upon it as provided in Fed. R Civ. P. 45(d) and (e).

July 28,2006 20

2 1

22

23

24

25

26

Joseph J. Tabacco, Jr. < Christopher T. Heffelfinger Nicole Lavallee 425 California Street, Suite 2 100 San Francisco, CA 941 04 Telephone: (4 1 5) 43 3-3 200 Facsimile: (41 5 ) 433-6382

DATED:

27

28

Liaison Cownsel for Lead Plainriff Connec[icut Reiiremenr Plans and Trust finds

[C 02-1486 CWJ NOTJCE OF SUBPOENA TO MOWI$ON & POERSTER LLP COMMANDING THE PRODUCTION OF DOCUMENTS

1


FILE No.569 07/28 '06 17:02 1D:BERNQN DEVflLERID FRX : 4154336382

Barbara J. Wart Jonathan M. Plirsse Anthony J. Harwod Michael W, Srocker LABATON SUCHAROW & RUDOFF, LLP 100 Park Avenue, 12th Floor New York, NY 1 00 17 Telephone: (21 2) 907-0700 Pacslmile: (2 12) 883-7062

Lead Counsel for Lead Plaintiashe Connecticur Retirement PIans and Tmst Funds

FOERSTER


F I LE No. 569 07/28 ' 06 17 : 02 I D : BERMAN DEVALER 10 FAX : 4154336382 PFIGE 5/ 19

CERTIFICATE OF SERVICE

I, vier Kelly, declare that I am over the age of 18 years and not a party to this action,

My business address is 425 California Street Suite 2100, San Francisco, CA 94104. On July

28, 2006, I served NOTICE OF SUBPOENA TO MOmSON & FOER8TER LLP

COMMANDING THE PRODUCTTON OF DOCUMENTS on the following, by placing

11 same in sealed envelopes, affixing proper first class postage, and depositing them in the

Melvin R Ooldman Jordan Eth Teni Garland Holly H. Tambling Morrisoh & Foerster LLP 425 Market Street San Franoisco, CA 94105

Solomon B. Cera Jos h M. Barton Go1 "S Bennett Cera & Sidener LLP 595 Market Street, Suite 2300 San Fmcisco, CA 94 105

Aaron H, Darsky Juden Justice Reed Willem F. lbncleer Schubert & Reed, L.L.P. Two Embarcadero Center Suite 1660 San Francisco, CA 941 1 1

Carol Valerie GiIden Michael e. Moskovitz Much Shelist Freed Denenberg Ament & Rubenstein 191 N. Wacker Drive, Suite 1800 Chicago, IZ 6060 1-1 095

Francis M. Gre or& Betsy C. Mani d . old Francis A. Bottini, Jr. Wolf Haldenstein Adler Freeman & Herz LLP 750 B Street, Suite 2770 San Diego, CA 92 10 1

Howard S. Car0 HeHer Ehrman Wbfte & McauIiffe, LLP 333 Bush Street San Fmcisco, CA 94104

Laurence D. Kin Kaplaa Fox & sbeimer LLP 601 Montgomery Street, Suite 300 San Francisco, CA 941 11

Richard S.E. Johns Ki perman & Johns 57 $ ost Street, Suire 604 Sari Francisco, CA 94 104

Michael D. Braun Timothy J. Burke Stul) StuU & Brody 10940 Wilshire Blvd., Suite 2350 Los Angeles, CA 90024

Andrew L. Barroway Stuart L. Berman Schiffrln & Barroway LLP 280 King of Prussia Road Radnor, PA 19087

I I LC-02-1486 CW] CERTIFICATE OF SERVICE 1


F I LE No. 569 07/28 ' 06 17 : 02 I D : BERMAN DEVALER I 0 FAX : 4154336382 PAGE 6/ 19

Michael L. CMson Heller Ebrman White & McAuiiffe, LLP 275 Middlefield Road Menlo Park, CA 94025

Steven E, Cauley Curtis L. Bowman Randall K. Pulliam Cauley Geller Bowman & Costes, LLP P.O. Box 25438 Little Rock, AR 72221

Marc S. Henzel Law Omces of Msrc S. EIewel 273 Montgomery Avenue, Suite 202 Bala Cynwyd, PA 19004

Me1 E. Lifbhitz Oregory M. EgIeston BernstelP, Liebhard & Liftshztz U P 10 East 40th Street, 22nd Floor New York, NY 100 16

John Frith Stewart Segal, Stewart, Cutler, Catlett, Lindsay & Jan- PLLC 1 40043 Waterfront Plaza 325 West Main Street LouisvilIe, KY 40202

William B. Fedman Federrnu & Sherwaod 1 20 N. Robinson, Suite 2720 Oklahoma City, OK 73 102

Andrew M. Schatz Patrick A. Klingman Schatz & Nobel, P.C. 330 Main S m t Hartford, CT 061 06

Jules Brody Aaron L. B d y Stull, Stul& brody 6 East 45th Stnet New Yo& NY 10017

Kevin J. Yourrnan Jennifer Williams Bchram V. Parekh Jordan Lurie Welas & Yourman 19040 Wilshire Blvd., 24th Floor h s Angela, CA 90024

Steven J. To11 Mark S. Willis Cohen, ,M~Istein, Hausfeld & Toll, PLLC 1 100 New York Avenue, N. W. West Tower, Suite 500 Washington, DC 20005

Lionel 2. Glancy Michael Goldberg Glancy & Binkow LLP 1801 Avenue of the Stars, Suite 31 1 Los AngeIes, CA 90067

Alfred G. Yates, Jr. Law Of f l c~ of Alfred G. Yates, Jr. 5 19 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 152 19

Anthony Bolagnese Bolo ese & Associates LLC One P enn Center f laza 1 6 17 JFK Blvd., Suite 650 Philadelphia, PA 1 9 103

Jeffrey P. Fink Robbins Uineda & Fink, LLP 6 1 0 West Ash Street, Suite 1 800 San Diego, CA 92 10 1

Curtis V, Trinko Law Offices of Curth V. Trinko 16 West 46th Street, 7th Floor New Yark, NY 10036

Bruce G. Murph ~ a w offices of i ruce G. ~ u r p h y 265 Lloyds Lane Vero Beach, FL 32963

[C-02- 1486 CW] CERTIFICATE OF SERVICE 2


FILE No.569 07/28 '06 17:02 1D:BERNAN DEVALERIO FAX:4154336382 PRGE 71 19

Marc A. Topaz Schiffrfn & Bsrroway Three Bala Plaza East, SuitE 400 Bala Cynwyd, PA 19004

John G. Emerson, Jr. The Emerson Flrm 830 Apollo b e Houston, TX 77058

David R Scott James E. Miller Scott & Scott, LLC 108 Notwich Avenue Colchester, CT 0641 5

Deborah R. Gmss Law Offices of Bernard M. Gross, P.C. 1 S 15 Locust Street, 2nd Floor Philadelphia, PA 19102

Paul J. Scarlato Coldman ScrrIato & Karon PC 101 West Elm Street, Suite 360 Conshohoch, PA 194283

Michael Donovan Donovan Searles, LLC 1845 Walnut Street, Suite 1 100 Philadelphia, PA 19103

Sherrie R Savett Barbara A. PodeIl Berger & Montague, P.C. 1622 Locust S m Philadelphia, PA 19103

C M e s J. Piven Law Offrces of Charles J. Piven, PA. The World Trade Center - Baltimore 401 East Pratt Street. Suite 2525

David M. Goldstein Joseph P. Garland Maridc & Goldstein, LLP Klein & Solomon, LLP 10535 Foothill Blvd., Suite 300 275 Madison Avenue, 1 1 th Floor Rancho Cucamonga, CA 91730 New York NY 10016

Fred Taylor Isquith Me1 Urbach Wolf, Haldenstein, AdIer, Freeman & Hen Law Ofllces of Me1 Urbach LLP One Exchan e Place. Suite 1000 270 Madison Avenue Jersey City, 3 07302 New York, NY 10016

B Kenneth A. Elan Kimberly Walker Law Offices of Kenneth A. Elan Berger & Montague, P.C. 2 17 Broadway, Sui tc 404 1622 Locust Street New York, NY 10007 Philadelphia, PA 29 103

William B. Fedman PreSer Barftz & Federman 120 N. Robinson, Suite 2720 Oklahoma City, OK 73102

James A. Capurn S ector Roseman & Kadroff, PC B 4 1 B Street, Suite 3600 San Diego, CA 92 10 1

Karen M. Manson Donald J. Enright Lockrid e Grindal Nauen P.L.L.P. L Andrew J. Morganti 100 Was "ngton Avenue South, Suite 2200 FlnlcelsteSn Thompson & Loughton Minneapolis, MN 55401 1055 Thomas Jefferson Street NW

Washington, D.C. 20007

Bruce D. Oakes Christopher Lavell Law Offices of Bruce D. Oskes Christopher J. Gray 8050 Watson Road, Suite 240 LuveU & Stewart, L.L.P. St. Louis, MO 631 19 500 Fifth Avenue

New York, NY 101 10

LC-02-1486 CWj CERTIFICATE OF SERVICE 3


F I LE No. 569 07/28 '06 17 : 03 I D : BERMAN DEVALER 10 FFlX : 4154336382 PFlGE 81 19

Jacqueline Sailer Rabia & Peckel, L.b.P. 275 Madison Avenue New York, NY 10016

Sberrie R. Savett Be er & Montague, P.C. 162 LOG US^ Stnet Philadelphia, PA 19 103

Jeffrey Neiman The Neiman Law Firm 14 12 Coney bland Avenue Brooklyn, NY 11230

Barbara A. Podell Savett Frutkin Podell & Ryan, P.C. 1622 Locust Street Philadelphia, Pennsylvania 1 9 103

Lynn Lincoln Sarlco

Iuli Elizabeth Fn D'?r . Leland Keller Rohrback LLP 1201 Third Avenue, Suite 3200 . Seattle, WA 98101

Paul J. Geller . Lerach Coughfin Stoia GeIler Rudmm & Robbins LLP 197 Souh Ferleral Highway, Suite 200 Boca Raton, Florida 33432

I declare under penalty of perjury pursuant to the laws of tho United States that the

faregoing is true and correct.

Executed at San Francisco, California, on July 28,2006.

ler Kelly 1

I I [C-02-1486 CW] CERTIFICATE OF SERVICE


FILE No .569 07/28 '06 17 :03 I D :BERMON DEVALER I0 FRX : 4154336382 PAGE 9/ 19

Issued by the UNITED STATES DISTRICT COURT

NORTHERN DISTMCT OF CALIFORNIA In re JDS Unipharc Corpontion Securities Litigation

TO: Morrison & Foercrer LLP 425 Market Street San Francisw, CA 941055482

DATE AM) TlME 7

YOU ARE COMMANDED to appear in the Unired States DislAct court at rbe place, dare, and time specified below tesrifL in Ihe above case.

I

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the raking of a deposition in the above case.

PLACE OF DEPOSITION I DATE Am TIME

PLACE OF TESTIMONY

I YOU ARE COMMANDED to produce and permit inspection and copying ofthe fol~owingdocuments or objects at the place, date, and time specified below (list documents or objects):

See rtmched Schedule A.

COURTROOM

PLACE

B e m n DeValerio, et at,, 425 California Stree~, Suite 2300, San Francisco, CA 94104

Any organization not r party to this suit that i s subpoenaed for lhc taking of a daposition shall designate one or more officers. directors, or managing r&cnts, or other persons who consent to atstify on its behalf, and may scr fonh, Br each person designated, the matters on which the parson will astify. Ftdcnrl Rultv ofcivi l Procedure, 30(b)(6).

DATE AM) TIME

August 18,2606 10:OO a.m.

PREMlSES

YOU ARE COMMANDED to petmi! Inspection of tbe following premises at the date and time specified blow.

DATE AND TIME

Christopher T, Heffelfiinger, Esq, 425 California Sweet, Suite 2100, Sm

(Sam liulc 43, FrlC~ll RulCI BtCi r i f PDCV~IC, h r U C I D an n e l l p n ~ e l

h

' I f acfion u pcnding in diwic! ohcr rhan distrlcl of is.wnce, matt UIsmju under c ~ s f nwnbca

ISSUMG OFFICER'S SIGNATURE AND OR DEFEN-D

s r ' DATE

July 28,2606

-ICER'S NAME, ADDRESS A M ) P H O F E R \


FILENo.569 07/28 '06 17:03 1D:BERUAN DEVALERIO FAX : 4154336382

PROOF OF SERVICE DATE PLACE

SERVED

SERVED ON (PRINT MME) MANNER OF SERVICE

SERVED BV I P R N ' NAME) tmE

DECLARATION OF SERVER

1 declare under penalty of pejury under ihe laws of the United Srates of America that rhe foregoing information cantained in the Proof of Senice is true and correct.

Executed on DATE SlGNA7lJREOP SERVER

AbDRESS OF SERVER


FILENo.569 07/28 '06 17:03 1D:BERMAN DEVQLERIO

Rule45, Fedenl ~ u l e s o l ~ i v i l Proecdurq Pans C & D:

(c) PROTE(JTI0N OFPERSONS SUBJECT TO SUBWENAS.

( I ) A pury or an auomey mspbnribL for h e issuance lad serviec of a subpocnrshall ukc wwambh $1- o avoid impadng undw bu&n or crpcnsc ona pcwnsubjccia Ihrtwbpocnr Thecowon blwlfof which rhesubpau was iroucdoharlc~lfor~c tbir duty andinrpupon rhcpany orruomcy in bra& orrhia dury M appropriate banetbn which may include, bug is no1 limilcd lo, lost crrningr xnd raso~blc M ornoy's fcc.

(2) (AIA penoncommanded t o p r o d ~ c ~ d p e n ~ t lmpc010~ andcopyhg of derignued books, pbpac. d m m a or mngiblo thiw, 01 i n w o n OF pmnirancdd nolapparin pClaoo rt ~hcplaceofpraduclion orinspecion unbs c 4 d d co ippcar for dcporirion, bcarin 6 or Irial.

produoc and pcnnir inspccrion md eepying may, wihin li drys afier ravim of subpocnaorbef~~~thc time spccified forompliancc ifswb rime is lwsthnn 14 dayr lh savicc. save up& ~ h c p l y or &mey dcribnvtcd in the subpwna wrinor o b j e c l i ~ Ioinopccrion or copyingofany orall of lhc dcdignaIcd nwotiab or of theprcmists. Ifobjocrion is madc.~hr party saving tbct~ubpom &dl not be onddod roinspccl and copymrsrialli a inspcef Ihc +miacs &ceprpunu;m~ roan orda ohht corn by ~A~ich Uic s u b m a wat issd If objcclion h~ bccn made. the party w i n g rhcsubpow mok upon notico t o l e per& comma ndcd b produce. move at any 6mc for an oldw to compel 1h0 production. Such m order comply production shall pmtcct any m a n who is not n pnry or an o f i m of a pwty ton1 significanl cltpcnre rc~ulling forn the i n ~ d o n mad copying comnanded.

(3) (4) On dm+ maion, the coun by which a subpoena w iswed shrll quash or d i & h c sub- ifit

(i) rails lo allow rcamable time for compli an=, (ii) requires a person who is nor a p ~ y &~oerictr dapnny to

vrvcl lo r place more then 100 mil# h m rhc ~lbce whcn! $at m a n midcs. id ornployd orffipbrly transac~sbu~inerr in pkoa. exccptrh8l; subject tolhc provirionsdclauoe (c) (3) (B) (iii) of c his mlc, 6uoh a pcrson nuy in brdcr lo atmnd

FAX : 4 154336382 PAGE 11/ 19

vial be commanded a mvcl From any sucli pbw within rhcr~rte in which rhe vial ir b W , or

(iii) rcquLes disclosu~eo~privil~cdor olhapw~ccral mrtrcr and no c x ~ t i o n or waivu spplins, a

(iv) srbjccrs a pewu to undue budcn.

(i) rcqmw disclwwc of n I& =rcr or other mfldcnrial mearch, dcvclopmcnr, or commercial i n f m r h n , or

(ii) rcquircs di~~lorure ef an unreuincd experl'r opinion or i n ~ o ~ ~ i a n nor dclicribingspecilicovanrp orohurmncrs indirputc and rwlring from tho cnpon's study mad$ nor ar thc rcquwc a f my parry, or

(iii) rcquira a pcrson whoir not a ponyor an officlr of a parry ro innu rubslanrial cspcns to rrsvrl more Lan 100 milcr D ar~cndrrial, the court )nay, U) P~OICCI a pomn rubjcct 10 or ~ffccted by rho rubpoma, quash or modify rbc subpoara, or, iflhc p a y in who behalf rhc subpocna is istd P h o w ~ a subsrurrial nccd for the 1 4 m m y or nvrcriai rhu camw be olhcnviw mcl wiBou~ undue hnrdahip and as8urcs rhsr thc pmon to whom the subpoenn is rwldrcwd will bc rcsso~bly compcwud, the MY( m y order appearant% ar +tion only upon epecifZo4 oonbitiam.

(dl DUTlES M IUESPONDING TO SUBPOENA.

(I) A pasan rclpoadbg to a subwma 10 pruduocdocumenk mall praducc

(2) When in fomion subjccl tor subpoem irwilhbld onaclrim tha il ir privilcpl or rubjccr u, prowdon atitrid prepamtion mawrid$, rhc clain hall be msdc cxpmsly and shall be supponcd by a dcrcriprion o f rhc narum or Ihc documcns, cornmunic*rions. M things not prodwcd tha~ is ruficicn! w m b l c the dcmnding party lo conlcst rhc chirn.


F I.LE No. 569 07/28 ' 06 17 : 03 I D : BERNFIN DEVALER I O FAX : 4154336382

SCHEDULE A

(Morrison & Foerster Subpoena)

1. DEFINITIONS

The dcfinitions and instructions set forth in the Fedml Rules of Civil Procedure and the

applicable Local Rules are adopted and treated as if fully set forth herein. The words and

phrases set forth below have the following meanings:

1. "You" or "your" means Morrison & Foerster LLP, to whom this subpoena is

addressed, or any owner, partner, director, officer, employee, agent, custodian, parent,

subsidiary, affiliate, predecessor, successor, attorney, accountant, represen~ative or other persons

purporting to act on its behalf. The term "represen~ative," as used in'this definition, means any

person who has worked or is working for you, or has acted or is now acting on your behalf.

2. "JDS" means JDS Uniphase Corporation and each of its affiliates, divisions,

subdivisions, offices, joint ventures, subsidiaries, successors and predecessors (including, but not

limired ro, Uniphase Corporation and JDS FITEL, Inc.), ahd all present and former officers.

directors, partners, principals, empIoyees, representatives, agents, attorneys, accountants,

advisors and all other persons acting or purporting to act on behalf of any of them.

3. "ETEK" means E-TEK ~~namics , Inc., and any and dl of its subsidiaries.

divisions, subdivisions, practice groups, departments, affiliates, predecessors, successors, joint

venmres,. corporate siblings, present and former oficers, directors, partners, principals,

employees, representatives, agents, attorneys, accountants, advisors and all other pmns acting

or purporting to act on behalf of any of them.

4. "SDL" means SDL, Inc., and any and all of its subsidiaries, divisions,

subdivisions, practicc groups, departments, affiliates, predecessors, successors, joint ventures,


FILE No ,569 07/28 '06 17 :03 ID :BERMAN DEVALER I0 FAX : 4154336382 PAGE 13/ 19

corporate siblings, present and former officers, directors, partners, principals, employees,

representatives, agents, attorneys, accountants, advisors and all other persons acting or

purporting to act on behalf of any of them.

5. "OCLI" means Optical Coating Laboratory, Inc., and any and all of its

subsidiaries, divisions, subdivisions, practice groups, departments, affiliates, predecessors,

successors, joint ventures, corporate siblings, present and former officers, directors, partners,

principals, employees, representarives, agents, artorneys, accountants, advisors and all other

persons acting or purporting to act on behalf of any of them.

6. “D~c~rnent" or "documents" means any written, printed or electronically stored

information, including writings, dxawings, graphs, cham, photographs, sound recordings,

images, and other data or data compilarions stored in any medium from which information can

be obtained. A draft or non-identical copy is a separate document within the meaning o f this

tern.

7. "Concerning" means relating to, referring to, describing, evidencing or

constituting.

8, "Person" or "persons" means any natural person or any business, legal or

governmental entity, association or arrangement.

9, "Communication" means the transmittal of infomarion (in the form of facts,

ideas, inquiries or otherwise) and includes any utterance, spoken or heard, whether in perm, by

telephone or otherwise and refas to all written, verbal or other communications and/or exchange

of information or documents between or among persons and entities.


FILE No .569 07/28 '06 17:03 ID :BERMAN DEVRLERI 0 FQX : 4154336382 PAGE 14/ 19

10. "Individual Defendants" means Josef Straus, Kevin Kalkhoven, Anthony R.

Mulla and Charles J. Abbe, and any person, employee, agent or represenwive acring on their

behalf.

11. "SEC" mr&s the United States Securities and Exchange Commission and any

person, employee, agent or representative acting on its behalf.

12. Reference to any gender includes the other gender; the word "any" means "any

and all;" the word "including" means "including, but not limited to;" the connectives "and" and

"or" shall be construed either disjunctively or conjunctively as necessary to bring within the

scope of a request all responses that might othew'se be construed to be outside its scope; and the

use of the singular form of any word includes the plural and vice versa.

13. ''2000 Acquisition of E-TEK" means IDS'S acquisition of E-TEE completed in or

about June 2000.

14. "2000 Acquisition of OCLI" means JDS's acquisition of OCLI completed in or

about February 2000.

IS, "2001 Acquisition of SDL" means JDS's acquisition of SDL camplefed in or


I I. INSTRUCTIONS

1. All documents shdl be produced as they aie kept in the usual course of business

so that Lead Plaintiff can ascertain the files in which they were located, their relative order and

how such files were mainrained.

2. All documents shall be produced in their entirety, including all atmchments and

enclosures, and in their original folder, binder or other cover or container. Whenever a document

or group of documents is removed from a fiIe folder, binder, file drawer, file box, nocebook or


F I LE No ,569 07/28 '06 17 : 03 ID : BERMRN DEVALER I0 FRX : 4154336382 PAGE 15/ 19

other cover or container, a copy of the label of such cover or other container must be attached to

the document or group of documents.

3. All documents that are stored in electronic or computer format shall be produced

in electronic format. You should confer with counsel for Lead Plaintiff as to the appropriate

format before producing electronic documents. AII such documents shall be accompanied by a

copy of all metadata concerning such documents, including dl information concerning the dates

the documents were created, modified or distributed, and the authors and recipients of the

documents.

4. If you claim any form of privilege or immunity, whether based on statute or

otherwise, as a ground for not producing responsive docments, please so state, separately

specifying for each such document:

a. the name and title of each author and/or sender of the document;

b. the name and tirle of each addressee and/or any other actual or intended

recipient of the document;

c. the date of the document;

d. the name and title of each person (other than stenographic or clerical

assistants) who participated in the preparation of the document;

e. rhe name and title of each person to whom the contents of the document

have h n disclosed;

f. a description of the nature and subject matter of the document; and

g. a starement of the basis on which it is claimed that the document i s

protected from disclosure.


FILE No .569 07/28 '06 17 :03 ID :BERMAN DEVALER I0 FAX : 4154336382 PAGE 16/ 19

5. I f a portion of any responsive document is claimed to be protected from

disclosure by privilege, any such document must be produced in fill with the portion claimed to

be protected redacted and the word "redacted" insmed in its place. With respect to each such

document, state the reason a portion of such document is being withheld.

6. You are required to produce documents or things in your possession, custody or

control, regardless of whether such documents or materials are possessed directly by you or your

directors, officers, agents, employees, representatives, attorneys, subsidiaries, managing agents

or affiliates,

7. All pages now stapled m fmtened together should be prod~ced~stapled or fktened

together, and each document that you cannot legibly copy should be produced in its original

form.

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

deletion or exclusion regardless of whether you consider the entire document to be relevant or

responsive.

9. If in responding to these requests you claim any ambiguity in interpreting a

request, or Definition or instruction applicable thereto, such claim shall not be utilized by you as

a basis for refusing to produce responsive documents.

111. =LEVANT TIME PERIOD

UnIess otherwise indicated, the Relevant Time Period is fiom January 1 , 1999 to the

present ("Relevant Time Period") and shall include all documents and information that relate, in

whole or in pan, ro the Relevant Time Period, or to evenrs or circ'urnstances during such period,

cvcn ihough dated, prepared, generated or received prior to or subsequent to that period.


FILE No .569 07/28 '06 17 :04 1 D :BERHQN DEVRLER I0 FAX : 4 154336382 PAGE 17/ 19

IV. DOCUMENT REQUESTS

1. All documents concerning the 2000 Acquisition of E-TEK, including, but not

limit4 to:

a. AH documents concerning any communications between or among you, E-

TEK, JDS or any other person;

b. At1 documents concerning any "comfort" or opinion letters &om lawyers,

auditors, accountants or any other person;

C. All documents concerning any fairness opinions provided by you;

d. All documents concerning any due diligence investigation of JDS or E-

TEK;

e. Documents sufficient to identify the names, titles, reporting relationships

and last known addresses of all persons involved in any due diligence of JDS or E-TEK;

and

f. All notices, minutes, exhibits, notes, agendas or resolutions relating to

meetings in which E-TEK was discussed, all other documents distributed or utilized in

connection with or otherwise relating to any such meetings, and all documents

concerning any communications generated in connection with any such meetings.

2. All documents concerning the 2000 Acquisition of OCLI, including, but not

limited to:

a. All documents concerning any communications bctwecn or among you,

OCLI, JDS or any other person;

b. All documents concerning any "comfort" or opinion It$tcrs hrn lawyers,



F l LE No .569 07/28 '06 17 :04 1D:BERMAN DEVALER I0 PAGE 18/ 19

c, . All documents conceming any fairness opinions provided by you;

d. All documents conceming any due diligence investigation of JDS or

OCLI;

e. Documents sufficient to identify the names, titles, reporting relationships

and last known addresses of all persons involved in any due diligence of JDS or OCLI;

and

f. All notices, minutes, exhibits, notes, agendas or resolutions relating to

meetings in which OCLI was discussed, all other documents disrributed or utilized in



3. All documents concerning the 2001 Acquisition of SDL, including, but not

limited to:

a. All documents concerning my communications between or among you,

SDL, JDS or any other person;

b. A11 documents concerning any "comfort" or opinion letters from lawyers,


c. All documents concerning any fairness opinions provided by you;

d. . All documents conceming any due diligence investigation of JDS or SDL;

e. Documents sufIicient to identify the names, titles, reporting relationships

and last known addresses of all persons involved in any due diligenm of JDS or SDL;

and

f. All notices, minutus, exhibits, notes, agendas or resolutions relating to

meetings in which SDL was discussed, all other documents distributed or utilized in


FILE No .569 07/28 '06 17 :04 1D:BERVAN DEVALERIO FAX : 4154336382 PAGE 19/ 19

connection with or otherwise relating to m y such meetings, and all documents

concerning any communications generated in canneetion with any such meetings.

4. Any electronic records, including e-mail back-up tapes, of any documents

responsive to requests 1-3, above.

5. Documents sufficient to fully describe your filing and record keeping system and

document preserva~ion or destruction policies, including, but not limited to, those relating'to

electronic recordkeeping, archiving and storage.


Exhibit 10


425 MARKET SIRJET F O E R S T E R SAN PRANCISCO

CALIFORNIA 94105-2482

December 1 1,2006

TELEPHONE: 415.268.7000 FAcSIM.Uk 415.268.7522

MORRISON POBRSTER LLP

NEW YORK, SAN PRANClSCO, LOS ANGELBS. PAL0 ALTO, I A N DIEGO, WASHINGTON, D.C.

DENVER, NORTHBRN VIRGINIA, ORANGE COUNTY, SACRAMENTO, WALNUT CRBBK, CENTURY CITY

TOKYO, LONDON, BBIJING, SHANGHAI, HONG KONG, SINGAPORE, BRUSSELS

Writer's Direct ~ o n k c t 415.268.6091 [email protected]

By Facsimile

Anthony J. Harwood, Esq. Labaton Sucharow & Rudoff LLP 100 Park Avenue New York, New York 1 00 1 7

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

Dear Tony:

I write M e r to our December 7 meet-and-confer session. This letter begips by addressing items included on Plaintiffs' agenda, before turning to the discovery issues raised by JDSU.

Issues Raised BY Plaintiffs

The Rule 30(b)(6) Deposition of Cisco Systems. Mark Labaton informed us that Plaintiffs have scheduled a meet-and-confer teleconference with counsel for Cisco to discuss Plaintiffs' contention that Cisco's 30(b)(6) witness was inadequate. Plaintiffs promised to keep us informed about the outcome of that discussion. As I stated during the cdI, until Plaintiffs' negotiations with Cisco have completed, it is premature for SDSU to take a position on whether or not to oppose another deposition of Cisco now that the deadline for deposition discovery has passed. You acknowledged that Plaintiffs would not, in any event, agree to a date certain for another deposition of Cisco without meeting-and-conferring with defendants first.

J q Abbe 's Notebooks and Calendar. As Terri Garland explained to you in an email before our call, if Mr. Abbe's notebooks were possessed by the Company at the time this lawsuit was filed, those notebooks were made available to Plaintiffs for inspection and copying. During the call, we again confirmed that we are not aware of a Bates range that corresponds to Mr. Abbe's notebooks (assuming they even exist).

As for Mr. Abbe's calendar, you suggested that Plaintiffs might provide us with a list of Mr. Abbe's calendar entries that Plaintiffs have located .in JDSU's document production. We


M O R R I S O N POERSTER

Anthony J. Harwood, Esq. December 1 1,2006 Page Two

agreed to then run an electmnic search to see if that search identified any additional entries fiom Mr. Abbe's calendar that were not identified by Plaintiffs.

Account Statements of Messrs. Abbe, Muller, and Straus. You stated that Plaintiffs seek statements for accounts controlled by Messrs. Abbe, MuIler, and Straus to verify their transactions in JDSU securities during the Class Period: You also stated that if those statements revealed trades that were not publicly-discIosed and of which Plaintiffs were unaware at the time they deposed those defendants, that Plaintiffs reserved the right to seek to re-convene those depositions to inquire about what Messrs. Abbe, Muller, and Straus knew about JDSU's business at the time of those additional transactions.

As set forth in my December 8 letter, although we continue to dispute Plaintiffs' need for this information, we agree to produce appropriately-redacted versions of all available statements fiom the accounts controlled by Messrs. Abbe, Muller, and Straus that reflect transactions in JDSU securities during the Class Period. We will produce those documents this week. As you will see from reviewing those statements, all of the transactions contained in them are revealed on the Forms 4 filed on behalf of Messrs. Abbe, Muller, and Straus. Accordingly, as acknowledged during yesterday's call, there is no basis for Plaintiffs to seek additional testimony fiom those defendants.

Reconvening the Deposition of Maurice Tavares. You stated that in the event Mr. Tavares will be a witness at trial in this case, Plaintiffs may seek to reconvene his deposition to question him about certain entries fiom the journal that was produced prior to his November 3,2006 deposition. Although you were unprepared to state whether Plaintiffs would be willing to identify particular entries fkom that journal that warranted firher questioning, you stated that you would check with Barbara Hart on that issue. In the meantime, we agreed to contact Mr. Tavares to determine whether he would be wiIling to voluntarily make himself available to sit again for deposition questions related to the journal. Given the impending motion cut-off date, however, Plaintiffs should proceed with their motion to compel on this issue if they intend to bring one.

Production of Data From JDSU's Legacy ERP Databases. The parties are currently engaged in negotiations on this issue and wish to have the meet-and-confer process run its course. Accordingly, the parties agreed to extend the deadline for Plaintiffs to file a motion to compel production of such data by one week (to December 19,2006, with that motion to be briefed on a standard 35-day schedule), should those negotiations reach an impasse.

Confidential Witness Statements in JDSU1s Possession. For the reasons set forth in my letter of November 7,2006, any declarations that JDSU has obtained from confidential witnesses are protected from disclosure as attorney work product until filed with the Court. Accordingly, JDSU does not agree to produce any such statements.


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

Anthony J. H ~ o o d , Esq. December 1 1,2006 Page Three

As stated on the call, JDSU is in possession of email correspondence fiom various confidential witnesses. Those communications primarily consist of exchanges regarding meeting times and the like. We agreed to produce emails fiom those Confidential Witnesses and anticipate making that production within 10 days.

We also confiied that JDSU does not possess any interview memoranda for the Confidential Witnesses, nor does JDSU possess verbatim statements for any other witnesses.

Issues Raised bv JDSU

JDSUJs Second Request for Production. As noted during the call (and at certain depositions), Plaintiffs used transcripts and audio recordings as exhibits during depositions that they had not produced, even though those transcripts and recordings are responsive to JDSU's document requests. Plaintiffs agreed to produce, by Thursday, December 14, any such transcript or recording that Plaintiffs have not produced previously. JDSU reserved the right to move to compel on this issue should .Plaintiffs fail to properly produce such transcripts and recordings by December 14.

We received your December 8 letter stating that Plaintiffs will make the envelope in which they received the Pitre email available for inspection at Labaton's offices in New York on a mutually convenient date. We will contact you this week to asrange a time for that inspection.

Plaintiffs' Responses to Anthony Muller 's Interrogatories. ' The parties agreed that they previously had satisfied their meet-and-confer obligations on this issue and had reached an impasse.

Plaintws Responses to Jozef Straus 's Interrogatories. The parties discussed Plaintiffs' .

response to interrogatory No. 13 because it had not been the subject of prior meet-and-confer discussions. JDSU explained that Plaintiffs' response was deficient because it failed to 'identify the factual basis for Plaintiffs' contention that they suffered a loss related to the "management7' of earnings. You agreed that Plaintiffs will inform us by the close of business on December 11 whether they intend to supplement their response to Interrogatory No. 13.

In addition, given Judge Laporte's November 29,2006 Order, we urged Plaintiffs to reconsider their position that supplemental responses are not required to the remainder of Dr. Straus's interrogatories. The parties met and conferred regarding the sufficiency of those responses on November 9. We propose that Plaintiffs supplement their responses by December 29. Please advise by December 15 whether Plaintiffs intend to supplement those responses. As we discussed, if the parties subsequently reach an impasse with respect to any of Plaintiffs' responses to Dr. Straus's intenogatories, we will propose a reasonable briefing


' M O R R I S O N F O E R S T E R I Anthony I. Harwood, Esq. December I I, 2006 ,

Page Four

schedule for Dr. Straus to move to compel appropriate supplemental responses, as contemplated by the Court's November 29,2006 Order.

Plaintifs ' Responses to Jay Abbe's Interrogatories. Thank you.for confirming that Plaintiffs are not withholding information pursuant to General Objections 3,4, 8, or 10.

For the reasons stated during our call, Plaintiffs' responses to the following interrogatories are deficient: Nos. 2,4-7, 10-1 1,13, 15, and 17-20. We propose that Plaintiffs supplement their responses by December 29. Please advise by December 15 whether Plaintiffs intend to supplement those responses. As we discussed, if the parties subsequently reach an impasse with respect to any of Plaintiffs' responses to Mr. Abbe's interrogatories, we will propose a reasonable briefing schedule for Mr. Abbe to move to compel appropriate supplemental responses, as contemplated by the Court's November 29,2006 Order.

In addition, I note that Plaintiffs' discovery responses, including (as just one example) Plaintiffs' response to interrogatory No. 20, continue to cite to documents produced from the files of Ernst & Young by using Plaintiffs' internal control numbers. Plaintiffs should provide us with appropriate citations for d l documents produced by Ernst & Young that are relied upon in any of Plaintiffs' discovery responses by no later than December 15. ,

Plaintrfs' Responses to JDSU's Requests for Admissions. For the reasons set forth during our conference, Plaintiffs' responses to the following requests aie deficient: Nos. 2, l&l5, 2~25,37-52,54-56,58-73,76-77,81-98,100,102-136,141-144, and 146156. Please confirm that Plaintiffs will provide a suppIemental .response to RFA No. 38 by December 13, and to the remaining WAS discussed during our call by December 20,2006, in accordance with the terms of the Court's November 29,2006 Order..

In addition, to the extent that the parties reach an impasse with respect to Plaintiffs' supplemental responses to JDSU's RFAs, we are hopeful that the parties will be able to agree upon a reasonable briefing schedule for JDSU to move to compel appropriate supplemental responses, as contemplated by the Court's November 29,2006 Order.

Vertjcations. Plaintiffs agreed to provide verifications to their discovery responses that are currently unverified. Michael Stocker's December 8 letter confirms Plaintiffs will do so within the next two weeks.


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

Anthony J. Harwood, Esq. December 1 1,2006 Page Five

Expert Reports. During the call, JDSU expressed its concern that the number of open discovery items would result in Plaintiffs seeking to file supplemental expert reports after the current January deadline. If that is l h l y to be the case, JDSU would prefer to negotiate a new deadline for the reports now, in the hope of avoiding the inefficiencies associated with a supplemental round of reports later. On December 8, Plaintiffs confirmed their interest in pursuing this issue and JDSU provided a proposed alternative schedule.

Very truly yours,

&L Philip T. Besirof

cc: Howard S. Caro, Esq. .


Exhibit 11


MORRISON I FOERSTE R

December 15, 2006

By Fax & UPS Overnight Delivery

Anthony J. Harwood, Esq .Labaton Sucharow & Rudoff, LLP100 Park AvenueNew York, New York 10017

425 MARKET STREET

SAN FRANCISCO

CALIFORNIA 94105-2482

TELEPHONE :415 .268 .7000

FACSIMILE :415 .268 .752 2

WWW .MOFO .CO M

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

Dear Tony :

MORRISON & FOERSTER LL P

NEW YORK, SAN FRANCISCO,

LOS ANGELES . PALO ALTO ,

SAN DIEGO , WASHINGTON, D .C.

DENVER, NORTHERN VIRGINIA,

ORANGE COUNTY . SACRAMENTO,

WALNUT CREEK, CENTURY CITY

TOKYO, LONDON, BEIJING .

SHANGHAI, HONG KONG,

SINGAPORE . BRUSSEL S

Writer's Direct Contact

415.268 [email protected]

Pursuant to my letters of December 8 and 11 , 2006 , enclosed find the relevant pages from all

available statements for the accounts cont ro lled by Messrs . Abbe, Muller, and Straus that

reflect transactions in JDSU securities during the Class Pe riod. The statements are labeled

JDSU 3107157-348 .

We note the following with respect to this production :

1 . The statements have been redacted to reflect only transactions in or holdings of JDSUsecurities during the Class Period.

2. As you wi ll see, the statements reveal no transactions in JDSU securities that were not

known by or available to Plaintiffs at the time that these defendants were deposed .

Accordingly , as acknowledged during our December 7 meet-and-confer call, and as

confirmed in my December 8 le tter, there is no basis for Plaintiffs to seek additionaltestimony from these defendants .

3. Some of the statements include dates for either (or both) the trade and settlement of thetransactions at issue. Accordingly, they may reflect dates that differ slightly from thedates reflected on the publicly-available Forms 4 .

4. Due to stock splits that occurred in December 1999 and March 2000, certain accountstatements reflect "transactions" that were simply journal entries to effectuate or reflectthe stock splits .

sf-2238489

MORRISON I FOERSTE R

Anthony J . Harwood, Esq .December 15, 2006Page Two

5. The statements for the Bank of America account held by "Anthony Richard Muller &Lary Lynn H . Muller Trusts" indicate a sale of 10,000 shares on June 2, 2000 . Asconfirmed by the e-mails labeled CITI / JDSU 00016-19, this entry reflects a duplicatetransaction that was mistakenly posted to the account . As reflected in the statements, thaterror was subsequently rectified .

6. The enclosed production includes documents that were in the possession of thesedefendants' financial advisors . Please note that for Dr. Straus, the available documentsare summary account records for 2000 and 2001 ; those summaries are included with thisproduction .

Please contact me with questions .

Sincerely,

Philip T. Besirof

cc: Howard S . Caro, Esq .

Enclosures (by UPS Overnight Delivery only)

sf-2238489

Exhibit 12


I 425 hURKET STWTYI' M(>RRISON (* FOERSTKR 1.1.~

M O R R I S O N F O E R S T E R SAN FRANCISCO N R W Y O R K , SIN I'RANI:ISCI),

CA1Jl:ORNIA 94105-2482 1.OS ANGRl.ES, PAl.0 Al,T[l, SAN l>ll<GO, WASIIINCTON. l>.C.

TEXEPHONR: 415.268.7000 I)IINVI!R, NORTttBRN V IRGIN IA , ORANCI! C O I I N I Y , SACRAMRNTO,

FAcsIMII ,I? 415.268.7522 WAI.NIIT CHEEK. CfIN1'lIRY C t T Y

MWW.MOI:O.COM TOKYO. I.ONI>ON, RHIJING. SI IANGIIAI , It[)NG KONG, SINGAPORI!, DRLISSII1.S

November 7,2006 Writer's Direct Contact 41 5.268.6091 [email protected]

By Fax

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- 1486 CW (EDL)

Dear Tony:

I write in response to your November 7 letter regarding Plaintiffs' request for the production of Confidential Witness statements in JDSU's possession. To the extent JDSU has any such statements, they are protected from disclosure by the attorney work product doctrine until the moment that JDSU decides to file them, if at all, with the Court. See, e.g., Intel Corp. v. VIA Technologies, Inc., 204 F.R.D. 450,452 (N.D. Cal. 2001).

Moreover, Plaintiffs cannot argue that they were ignorant as to the existence of those witnesses. In fact it was Plaintiffs who disclosed the Confidential Witnesses to JDSU in their Rule 26 initial disclosures. As the Court stated in Intel,

[Wlhen a fact witness is disclosed, all parties are on notice that tfie disclosing side contends the witness has relevant knowledge, All are thus on notice that the disclosing side may well have interviewed the witness and may have even obtained a statement. That would be normal practice. Disclosing that fact would only disclose what should be presumed by prudent counsel. All parties arepee to contact the fact witness and obtain their own statements.

Id. (emphasis added.)

As you are aware, many months ago JDSU requested notes of the statements made by Confidential Witnesses to Plaintiffs' counsel and investigators. Plaintiffs have refused to discIose those statements, maintaining that they are privileged. Do Plaintiffs now contend


M O R R I S O N F O E R S T E R I Anthony J. Harwood, Esq. November 7,2006 Page Two

that JDSU is in fact entitled to the notes of those Confidential Witness statements? If so, please advise us so that JDSU may consider our position regarding any Confidential Witness statements in its possession.

Very truly yours,

/& L Philip T. Besirof

cc: Howard S. Caro, Esq. Daniel B. Harris, Esq.


Exhibit 13


FILE No ,538 07/19 '06 17 :36 ID :BERMRN DEVQLER I0 FAX : 4154336382 PAGE 2/ 17

Joseph J. Tabacco, Jr. (75484) Christopher T. Heffelfinger (1 18058) Nicole Lavallee (165755) BERMAN DeVALERIO PEASE TABACCO

BURT & PUCILLO 425 California Street, Suite 21 00 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (4 1 5 ) 433.63 82 Ernail: [email protected] Email: che ffelfin [email protected] Email: nlavallee f bermanesq.com

Liaison Counsel for Lead Plaintiff Connecticut Rctircment Plans and Trust Funds

Barbara J, ECart Jonathan M. Plasse Anthony J. Harwood Michael W. Stocker LABATON SUCHAROW & RWDOFF, LLP 100 Park Avenue, 12th Floor New York, NY 1001 7 Telephone: (212) 907-0700 Facsimile: (2 12) 883-7062

Lead Cowel for Lead Plaintiff Connecticut Retirement Plms and Trust Funds

I I UNITED STATES DISTRICT COURT

I I NORTHERN DISTRICT OF CALIFORNIA

I I OAKLAND DIVISION

M RE JDS UNIPHASE CORPORATION j Masm Fils No. C 02-1486 CW SECURJTIES LITIGATION 1

) I This Document Relates to: All Actions

NOTTCH OF SUBPOENA TO WILSON ) SONSINI GOODRICH & ROSATI ) COMMANDING THE PRODUCTION OF ) DOCUMENTS

[C 02-1486 CW] NOTICE OF SUBPOENA TO WILSON SONSMI GOODNCH & ROSATI COMMANDING THE PRODUCTION OF DOCUMENTS


FILE No 538 07/19 '06 17 :37 ID :BERMAN DEVQLERIO PAGE 3/ 17


I I PLEASE TAKE NOTICE that pursuant to Rules 26.34 and 45 of the Federal Rules of Civil I I I Procedure, plainritIs wiU inspect and copy the documents identified in the schedule annexed hereto, I I I that are in the possession, custody or control of the following third party: 1 I I SUBPOENAED PARTY

Berman DeValerio Pease Tabacco Burt & Pucillo 425 California Street, Suite 21 00 San Francisco, CA 941 04

I ( Said production will take place on or More August 16,2006 at 10:OO am ar the above- I I I listed address, or such other location as is mutually acccptablc to the abovclisted third party and I I 1 plaintiffs' counsel. I I I This production is pursuant to a subpoena (a copy of which is attached) commanding the I 1 I production of documents issued by plaintiffs' counsel on behalf of the United States District Cow. I I I NO testimony is required by the subpoena, and no one need appear from [he third party or for any of I I ( the parties in this action at this time. I I 1 PLEASE TAKE FURTHER NOTICE that the particular above-listed third party may be held 1 11 in contempt of court pursuant to Fed R Civ. P. 45(e) if the party fails without adequate excuse lo

( 1 obey the subpoena saved upon it, and that it has wrtain legal rights in response to plaimiflr'

1 I subpoena served upon it as provided in Fed. R. Civ. P. 45(d) and (e). I DATED: July 19,2006 BERMAN DeVALBlUO PEASE

Joseph I. Tabacco, Jr.

Nicole Lavallce u Christopher T. Heffelfinger

425 California Street, Suife 2 100 San Francisco, CA 94 104 Telephone: (41 5 ) 433-3200 Facsimile: (41 5 ) 433-6382

Liaison Counsei,fov Lead Plainri Connecricut Retirement Plans and Trust Fun I

[C 02-1486 CW] NOTICE OF SUBPOENA TO wnsoN SONSMI GOODRICH BL ROSATI COMMANDING THE PRODUCTION OF DOCUMENTS


F l LE No, 538 07/19 '06 17 : 37 ID : BERNAN DEVALER I O FAX : 4 154336382 PAGE 4/ 17

Barbara J. Hast Jonathan M. Plassc Anthony J. Harwood Michael W. Stocker LABATON SUCHAROW & RUDOFF, LLP 100 Park Avenue, 12th Floor New Y ork, NY 100 17 Telephone: (2 12) 907-0700 Facstmile: (2 12) 883-7062

Lead Counsel for Lead Plaintif the Connecticut Retirement PIans and Trwt Funds

[C 02-1486 CW] NOTICE OF SUBPOENA TO WILSON SONSINI GOODRlCH & ROSATl COMMANDING THE PRODUCTION OF DOCUMENTS


FILE No .538 07/19 '06 17 :37 I D :BERMAN DEVALERIO FAX : 4154336382 PAGE 51 17


I, Sheralyn Tuiasosopo, declare that I am over the age of 18 years and not a party to

this action, My business address i s 425 California Skeet, Suite 2100, San Francisco, CA

94104. On July 19, 2006, I served NOTICE OF SUBPOENA TO WILSON SONSlNl

GOODRICH & ROSATI COMMANDING THE PRODUCTION OF DOCUMENTS

11 on the following, by placing same in sealed envelopes, a x i n g proper first class postage, and /I depositing than in the United Stater Mail at San Francisco, California:

Melvin R. Goldman Jordan Eth Tem Garland Holly H. Tmbling Morrison & Foarsttr LbP 425 Market Street San Francisco, CA 94105

Howard S. Cam Beller Ehman White & Mcauliffe, LLP 333 Bush Street San Francisco, CA 941 04

Solomon B. Cera , Laurence D. Kin Jose h M. Barton A' Kaplau Fox & 'lsheirner LLP Gal Bennett Cera & Sidener LLP

d 601 Montgomery Street, Suite 300

595 Market Street, Suite 2300 San Francisco, CA 941 11 San Francisco, CA 941 05

Aaron H. Darsky Juden Justice Reed Willem F. Jonclccr Schubert & Reed, L.L.P. Two Embarcadero Center Suite 1660 San Francisco, CA 941 1 1

Carol Valerie Oilden Michael e. Maskovitz Much Shelist Freed Denenberg b e n t & Rabenstda 191 N. Wackm Drive, Suite 1800 Chicergo, IL 60601-1 095

Richard S.E. Johns Ki perman & Johno 57$ost Street, Suite 604 San Francisco, CA 94 104

Michael D. 'Bran Timothy J. Burke Stun Stull& Brody 1 0940 Wilshire Blvd., Suite 2350 Los Angefes, CA 90024

Francis M, Gregorek Andrew L. Barroway Betsy C. Manifold Stuart L, Berrnan Fmcis A. Bottini, Jr. Schifbin & IBarroway LLP Wolf Hallenstein Adler Freeman 280 Kin of Prussia Road & Hen LLP Rsdnor, A 19087 750 B Street, Suite 2770

$ Sari Diego, CA 921 01

[C-02- 1486 C WJ CERTIFICATE OF SERVICE


Michael L. Charlson Heller Ehmsn Wbite & McAutiffe, LLP 275 Middlefield Road Menlo Park, CA 94025

Steven E, Cauley Curtis L. Bowman Randall K. PuIliam Cauley Geller Bowman & Coottes, LLP P.O. Box 25438 Littlc Rock, AR 7222 1

Marc S. Henzel Law Offices of Marc S. Henzel 275 Montgomery venue, suite 202 Bala Cynwyd, PA 19004

Mei E. Lifshitz Gregory M. Egleston Bernstein, Liebhard & Liftshftz LLP 10 East 40th Street, 22nd Floor New York, NY 1001 6

John Frith Stewart . Segal, Stewart, Cutler, Caflett, Lirrdsay & Jan-, PLLC 1400-8 Waterfront Plaza 325 West Main Street Louisville, KY 40202

William B. Fedcrman Fedeman & Sherwood 120 N. Robinson, Suite 2720 Oklahoma City, OK 73 102

Andrew M. Schatz Patrick A. Klingman Schrtz & Nobel, P.C. 330 Main Street Hartford, CT 06106

Jules Brody Aaron L. Brody Stutl, Stull& Brody 6 East 45th Street New York, NY 1 001 7

Kevin J. Y ounnan Jennifer Williams Behram V. Parekh Jordan Lurie Weiss & Yourman 19040 Wilshire Blvd., 24th Floor Los Angeles, CA 90024

Steven J. Toll Mark S, Willis Cohen, Milstein. Haosfeld & Toll, PILLC. 1 100 New York Avenue, N. W. West Tower. Suite 500

Lionel Z. Glancy Michael Goldberg Glancy & Bin kow LLP 180 I Avenue of the Stars, Suite 3 1 1 Los Angeles, CA 90067

Alfred G. Yates, Jr. Law Offices of AIfked G. Yates, Jr. 5 1 9 Allegheny Building 429 Farbes Avenue Pittsburgh, PA 152 1 9

Anthony Bologntsc Bolomeae & Associates LLC One Penn Center Plaza 161 7 JFK Blvd., Suite 650 Philadelphia, PA 191 03

Jefiey P. Fink Robbins Umeda & Fink, LLP 61 0 West Ash Street, Suite 1 800 San Diego, CA 92 10 1

Curtis V. Trinko Law Offices of Curtis V. Trinko 16 West 46th Street, 7th Floor New York, NY 10036

Bruce G. Murphy Law Omces of Bruce G. Murphy 265 Lloyds Lane Vero Beach, FL 32963

[C-02-1486 CW] CERTIFICATE OF SERVICE 2


F lLE No .538 07/19 '06 17 :37 ID :BERMAN DEVQLERI 0 FAX : 4154336382 PAGE 7/ 17

Marc A. Topaz Paul J. Scarlato SchSfYkim & Barroway Weinstein Kitchenoff Scarlato & Three Bala Plaza Eat, Suite 400 Goldman Ltd. Bala Cynwyd, PA 19004 1 845 Walnut Street, Suite 1 l 00

Philadelphia, PA 191 03

John G. Emerson, Jr. The Emerson Firm 830 Apollo Lane Houston, TX 77058

Michael Donovan Donovan Searla, LLC 1845 Walnut Street, Suite 1 100 Philadelphia, PA 19103

David k Scott Sheme R. Savert James E. Miller Barbara A. PodeH Scott & Scott, LLC Ber er & Montague, P.C. 108 Norwi~h Avenue 1624 ~osust Street Colchester, CT 0641 5 Philadelphia, PA 19 103

Deborah R. Oross Charles J, Piven Law Offices of Bernard M, Gross, P.C. Law Offices of Cbarles J. Piven, P.A. 1 5 15 Locust Street, 2nd Floor Thc World Trade Cen~er - Baltimore Philadelphia, PA 19 1 02 401 East Pmt? Street, Suite 2525

Baltimore, MD 21202

David M. Goldstein Maricic & Goldatein, LLP 10535 Foothill Bivd., Suite 300 Rancho Cucarnonga, CA 9 1 730

Fred Ta lor Isquith Wolf, wldeastein, Adlcr, Freeman & Hem LLP

d 270 Madison Avenue New York. NY 10016

Joseph P. Garland Klein & Solomon, LLP 275 Madison Avenue, 1 1 th Floor New York, NY 1001 6

Me1 Urbach Law Offices o f Me1 Urbach One Exchange: Place, Suite 1000 Jersey City, NJ 07302

Kenneth A. Elan Kimberly Walker Law Of'Crces of Kenneth A. Elan Berger & Montague, P.C. 2 17 Broadwa , Suite 404 'G 1622 Locust Street New Y ork, N ' 10007 Philadelphia, PA 19 103

William B. Fedman Dreier Beritz & Federrurn 120 N. Robinson, Suite 2720 Oklahoma City, OK 73 102

James A. Caputo S ector Roseman & Kodroff, PC 481 B stre*, suit= 1600 San Diego, CA 921 01

h e n M. Hanson Donald J. Enright Lockridge Grinds! Nawen P.L.L.P. Andrew J. Marganti 100 Washington Avenue South, Suite 2200 Finkelatein Thompson & Lou bton Mjnneapolis, MN 55401 1055 Thomas Jefferson Street d W

Washington, D.C. 20007

Bruce D. Qalces Christopher Lovell Law Offices of Bruce D. Oakes Christopher J. Gray 8050 Watson Road, Suite 240 Lovellde Stewart, L.L.P. St. Louis, MO 63 1 19 500 Fifth Avenue

New Yo& NY 101 10



FILENo.53807/19 '06 17:37 1D:BERHAN DEVALERIO FAX : 4 154336382 PAGE 8/ 17

Jacqueline Sailer Rabin & Peckel, L.h.P. 275 Madison Avenue New York, NY 100 16

Sherrie R. Savett Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103

Jefiey Neiman The Neiman Law Firm 14 1 2 Coney Island Avenue Brooklyn, NY 1 1230

Barbara A. PodelI Savett Frutkin Podell & Ryan, P.C. 1622 Locust Street Philadelphia, Pennsylvania 1 91 03

Lynn Lincoln Sarko Juli F. Dtsper Elizakth A, Leland Keller Rohrback LLP 1201 Third Avenue, Suite 3200 S tattle, WA 98 1 0 1

Paul J. Geller bench Coughlin Stoia GeUer Rudman & Robbihs LLP 197 South Federal Highway, Suite 200 Boca Raton, Florida 33432

I declare under penalty of pe jury pursuanr to The laws of lfre United States that the


Executed at San Francisco, California, on July 19,5006.

[C-02-1486 CW] CERUFICATE OF SERVICE


FILE No. 538 07/19 '06 17 : 37 I D : BERRAN DEVALER I 0 FAX : 4 154336382 PAGE 9/ 17


NORTH ERN DISTRLCT OF CAIJFORNYrr in re IDS Uniphase Corporation Securities Litigation

SUBPOENA IN A CIVIL CASE v.

TO: Wilson Sonsini ooadrich & Rosati 650 Page Mill Road Pa10 Alto, California 94304- 1050

YOU ARE COMMANDED to zppear in the United States Disuict court at the place, &re, and rime specified below testify in the above case.

PLACE OF TESTIMONY

I

YOU ARE COMMANDED to produce and pemit inspectionand copying of the followingdocumenu or objects at the

COURTROOM

1

YOU ARE COMMANDED t4 appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.

place, date, and lime specified below (Ikr documents or objects): See arreched Schedule A.

PLACE OF DEPOSITION

B e m n DcValctio, ct a]., 425 California Skcet, Suite 2 100, Ssn Frericisco, CA 94 104 August 16,2006 10:00 a.m.

YOU ARE COMMANDED to permit inspection of the following premises at the dam and time specified below,

DATE AM) TIME

Any organiurtion not a parry to rllis suit that i s gubpnenaed for the taking of a deporirion shall dcLignare ant ot more Ofticers, dlrcctorr, or managing agents, or orber parsons who oonscnt ta aaify on itr behalf, and may set forth, Br tach pcrron designared, the matters on which h e persbn will restify. Federal Rules ofcivil Procedure, 30(b)(6),

PRFMISFS DATE AN) TIME

Chrismpher T. Heffclfingcr, 425 California Strcct, Suitt 4104 (415) 433-3200

(Scs Rule 4S, Fs4s*l Rules atCivll rmsaaurr. Prr~rC B Don ncnl prus)

l S S W OFFICER'S SIGNATURE I C A E IF ATPORNTSY FOR PUINTIPF OR DmNDANTI

t '

' Ilwtim is pending in district ofher than d i h a atirnuneo, rw d i d c t undw- number.

DATE

July 19,2006

ISSUINGOFPlCER'S NAME,


FlLENo.538 07/19 '06 17:37 1D:BERflAN DEVALERIO FRX : 4154336382 PAGE 10/ 17


SERVED

SERVED ON (PRINT MANNER OFSERVICE

SRRVEO BY ( P R l N T N m m T E

DECLARATION OF SEVER

I declare under penalty of pejury under the laws of the United States of America that the foregoing information contained in tb Proof of Senice is true and correct.

Executed on 'DATE SIGNATUREOF SERVER

ADDRESS OF SERVER


FILE No.538 07/19 '06 17:37 1D:BERflAN DEVALERIO

Ruls45, Fedenl Rulcsof Civil Procedure, Pasts C k D:

(c) PROTECTlON OFPERSONS SUBJECT TO SUBPCeNAS,

(I) A pury or m M m y mponible for the isruurce rad mice of b subpo~nasball tnltc rewambleswps la avoid impoangundueburdcn orexpense on a p c ~ n subject to rhu rubp&, Tho o w on behalfof uhich tb ~ub+ r~rr istucd shallenforce t l i s duty ~ n d i m p ~ u p o n rho parry orauomcy in h w b of rhir duty an appropriate sanction whichmy includi hrw i s ~w lirnirtd m, lost urnin@ d rmomblo anmcy'e fee.

(2) (A) A peniancomm~dcd ta productnndpcrmit inspcaion ad copyh# of desipmcd books. papem, documents or rangible things. or inspection of p m k s nesdmtupprin parron ar thcplace ofproducrion orilli~pcclion mkas commandod to appear for dcposidon. hvanng or rrial.

(B) S u b j ~ IO -gapti (d) (2) ofhis rule. ;r psnoa commndcd to prnduec a d permil inlrpecrion a d copying my, wirhm 14 doysalkr saviee 01 subpcna w before ltse time -if& for compliance if nuch rime is Icssrbua f 4 drya rRcr sowict, m e upon t&e m y or auomey designated intho 6UbpOe~a

be cnt i~ ld roi-r mdcopyrnawrolr a i&k t h e f m h m &cuprpunwt lo an ardar ofha covn by a i c h the subpoum w u issued. If objection has been mndc. rhe yany w i n g rhooubpacna my, upon notice luk pMon commsndod to prodwe, movr rr my limo for M &r D campel the producrion. Such an ardcr ro conrply prodwrion shall pro~cc~ any pemop who is not a party or ra officer o f a pmy tom rignifiant expanSc tosulting from rhc inspeetion md copyinp camrandcd.

(3) (A) On rimcly maim, Ihc eoun by which a $ubpacn4 w isucd s M l q w h or rnodie ~k subpoena If it

(i) laib ta rUow mwtuble time for oampliance, (ii) rquim @paw who is nor a p~lty or uloficer d a pany to

mvel to r place more t h 100 mile8 @om the place where rhrr pa^ midc& Is employed or regularly mnsacra business in pmon, except thr, subject rotbe proviriansof clnuse (c) (3) (iii) of r his d c , wrch a p w n m y in orda to anend

FAX : 4154336382

!rid be commanded ro r m l fhm any ~ ~ c b p b within theinate in which h e trial L held, or

(iii) requires di~lcloouroofprivilqcd orofhuprott~td ~h.ttef and no exception or waiver applies. or

(iv) subjects a pewn lo undue budan.

(i) raquiru d i rc los~ of a rmdo srut~ or othtr confidential rorrouch, dcvckpn\cot, or commcreial infmaIion, or

(ii) rquircs dis&sure of w unrctlrined cspen's opinion of inl'annation nor d e o c r i b i n g a ~ f i c c v m ~ o c ~ t ~ m c n c ~ ind i rpu~ adrrvrlring fmm Ute expert's arudy mado no1 a1 the rqutsr of any pm, or

(iii) mquim e poroon whois no! a pmyor aa officuora partym incurrubutantial expenrc to VIWI mow @baa 100 m i l s D mend trial. lhc CPU~I

may, to protect a p a w n rubjHt4 or a f f M by rhs rubpama, qusrb or modify rhc SUM or. i C h p m y in who bohllrhc srrbpnona ia ivucd shows a rubsran~ial noed for chc tcluimony or munial rhu canno; bo olcrwkc inct withoru undue hardship and a s w a hr thc to whom rhc mbpomr is a d d r e d will bc ~ o a s ~ b l y c o r n p c 0 ~ 4 . the hc my orda sppoaran~e nr pmduaion only upon specified ~ o n d i t i c ~ .

(d) DUTIES IN RESPON'DMG TO SUBPOENA.

(I) A w o n responding u, a rubpaem w produce dmmonu &all producc ham as rhcyarc Leptinlbe WUYI c a m e of bwinro ot ahall organizo and label hem ra cornspond with he carcpwos in thc demand.

(3)Whcn informtion subject rar subpoena iswithhold onaclaim hat it i s privileged or s ~ b j ~ c t to pmtecrion rpmd prepution rnaKlid~, she lain $MI be made expmrly and shall be eupparted by n description of rho narum of rhc dooumenro, communiortions, or things not prodwd ~ h * it ~lmcicnl ro arablo fie demanding p n y to sonroPr tho ckm.


FILE No .538 07/19 '06 17 :38 I D :BERMQN DEVALERIO FAX : 4 154336382

(Wilson Sonsini Goodrich & Rosati Subpoena)

I. DEFINITIONS

The definitions and instructions set forth in the Federal Rules of Civil Procedure and the



1. "YOU" or "your" means Wilson Sonsini Goodrich & Rosati, to whom this

subpoena is addressed, or any owner, director, officer, employee, agent, custodian, parent,

subsidiary, affiliate, predecessor, successor, attorney, accountant, representative or other persons

purporting to act on its behalf. The term "representative," as used in this definition, means any

person wha has worked or is working for you, or has acted or is now acting on your behalf.

2. "JDS'means JDS Uniphase Corporation and each of its affiliates, divisions,


limited to, Uniphase Corporation and JDS FITEL, Inc.), and all present and former directors,

oficers, employees, representatives, agents and other persons acting on behalf of any of thm.

3. "E-TEK" means E-TEK Dynamics, Inc., and my and a l l o f i ts subsidiaries,

divisions, subdivisions, practice groups, departments, affiliates, predecessors, successors, joint

ventures, corporate siblings, present and former officers, directors, partners, principals,

employees, representatives, agents, attorneys, accountants, advisors and all other persons acting

or purporting to act on its behalf.

4. "Document" or "documents" means any written, printed or electronically stored

information, including writings, drawings, graphs, charts, photographs, sound recordings,

images. and other data or data cpmpilations stored in any medium from which information can


FILE No.538 07/19 '06 17 :38 I D:BERMAN DEVRLER I0 FAX : 4154336382

be obrained. A draft or non-identical copy is a separate document within the meaning o f this

term.

5 . "Concerning" means relating to, referring to, describing, evidencing or

constituting.

6. "Person" or "persons" means any natural prson or any business, legal or


7, "Communication" means the transmittal of information (in the form of facts,

ideas, inquiries or otherwise) and includes any utterance, spoken or bed, whether in person, by

~elephone or othewisc and refers to all wrirten, verbal or other communications and/or exchange


8. "Individual Defendants" means Josef Straus, Kevin Kdkhoven, Anthony R.

Muller and Charles J. Abbe, and any person, employee, agent or representative acting on their '

behalf.

9. "SEC" means the United States Securities and Exchange Commission and any



and all": the word "including" means "including, but not limited to"; the connectives "8tld" and

"or" shall be construed either disjunctively or oonjunnively as necessary to bring within the

scope of a requ,est all responses that might otherwise be construed to be outside its scope; and the

use of the singular form of any ward includes the plural and vice versa.

I 1. "2000 Acquisition of E-TEK" means JDS's acquisition of E-TEK completed in or

about June 2000.


FILE No .538 07/19 '06 17:38 I D :BERMAN DEVALERlO FAX : 4 154336382 PAGE l4/ 17

11. INSTRUCTIONS

1. All documents shall be produced as they are kept in the usual course of business

so that Lead Plaintiff can ascertain the files in which they were located, their relative order and

how such files were maintained.

2, All documents shall be produced in their entirety, including all attachments and

enclosures, and in their original foIder, binder or other cover or container. Whenever a document

or group of documents is removed from a file folder, binder, file drawer, file box, notebook or

other cover ar container, a copy of the label of such cover or other container must be attached to


3. All documents that are stored in eiectronic or computer format shall be produced


format before producing alectronic documents. All such documents shall be accompanied by a

copy of all madata concerning such documents, including all infomationconccming the dates

the documents were created, modified or distributed, and the authors and recipients of, the

documents.

4, If you claim any form of privilege or immunity, whether based on sratute or

otherwise, 3 a ground for not producing responsive documents, please so state. separately

specifying for each such documenr:

a. the name and title of each author andor sender of the document; .

b. the name and title of each addressee and/or any othcr actual or intended


C. the date of the document;


FILE No ,538 07/19 '06 17 :38 ID :BERMAN DEVALERlO FAX : 4 154336382 PAGE 15/ 17



e, the name and title of each person to whom the contents of the document

have been disclosed;


g. a statement of the basis on which it i s claimed that the document is


5. If a portion of any responsive document is claimed to be protected from

disclosure by privilege, any such document must be produced in full with the panion claimed to

be protected redacted and the word "redacted" inserted in its place. With respect to each such

document, statk the reason a portion of such doc urn en^ i s being withheld.


control, regardless of whether such documents or materials are possessed d i ~ l y by you or your

directors, oScers, agents, employees, representatives, attorneys, subsidiaries, managing agents

or affiliates.

7. All pages now stapled or fastened together should be produced stapled or fastened

together, and each document that you o m o t legibly copy should be produced in its original

form.

8. You are to produce each dacument requested herein in its a i r s ty , without


responsive.


F l LE No ,538 07/19 '06 17 :38 ID :BERMAN DEVRLERIO FAX : 4 154336382 PAGE 16/ 17


request, or Definition or Instruction applicable thereto, such claim shall not be utilized by you as


111. RELEVANT TIME PERIOD

Unless othedse indicated, the Relevant Time Peri~d is from January 1, 1999 to the

present rRelewmt Time Period") and shall include aH documents and information that relate, in

whole or in part, to the Relevant Time Period, or to events or circumstances during such period,

even though dated; prepared, generated or received prior to or subscqucnc to that period.

IV. DOCUMENT REQUESTS

1. All documents concerning the 2000 Acquisition of E-TEK, including, but not

limited to:

a. All documents concerning any communications between or among you, E-

TEK and any other person;

b. All documents concerning. any "comfort" or opinion letters from lawyers,


c. All documents concerning any fairness opinions provided by you to E-

TEK;

d. A11 documents concerning any due diligence investigation of JDS;

e. . Documents sufficient to identify the names, titles, reporting relationships

and last known addresses of all persons involved in any due diligence of JDS; and

f. Ail notices, minutes, exhibits, notes, agendas or resolutions relating to

meetings in which JDS was discussed, all other documents distributed or utilized in


FILENo.53807/19 '06 17:38 1D:BERflAN DEVALERIO FAX : 4154336382 PREE 17/ 17


concerning any communications generated in connection wirh any such meetings.

2. Any electronic records, including e-mail back-up tapes, of any documents

responsive to the preceding request.

3. Documents sufficient to filly describe your filing and record keeping system and

document preservation or destmction policies, including, but not limited to, those relating to

electronic recordkeeping, archiving and storage.


Exhibit 14


FILE No ,588 07/28 '06 16 :52 1D:BERMCIN DEVALERIO FAX : 4 154336382 PAGE 2/ 16

Liaison Counsel for b a d Plaintiff Connecticut Retirement Plans and Trust Funds

1

6

7

Barbara J. Hart Jonathan M. Plasse Anthony J. W o o d Michael W. Stocker LABATON S U C W O W & RUDOFF, LLP 100 Park Avenue, 12th Floor New York, NY 1 00 17

Joseph J. Tabacco, Jr. (75484) Christopher T. Heffelfinger (1 18058) Nicole Lavallee ( I 65755) BERMAN DeVALERlO PEASE TABACCO BURT & PUCXLLO

425 California Street, Suite 2 1 00 San Francisco, CA 941 04 Telephone: (41 5 ) 433-3200 Facsimile: (41 5 ) 433-6382 Email: [email protected] Email: cheffeI [email protected] Email: nlavall~@bermanesq,com

l 8 11 UNITED STATES DISTRICT COURT

17

NORTHERN OlSTRiCT OF CALJFORNIA

Lwd Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds

20 11 OAKLAND DMSION

) IN RE IDS UNlPHASE CORPORATION ) Mmtm File No. C 02-1486 CW SECURITlES LITIGATION 1

J J;LP%II Action This Document Relates to: All Actions

) NOTICE OF SUBPOENA TO COLLETTE, ERICKSON. FARMER & O'NEILL L1.P

) COMMANDMO THE PRODUCTION OF ) DOCUMENTS

[C 02-1486 CW] NOTICE OF SUBPOENA TO COLLETTE, ERXCKSON, FARMER & O'NEILL LLP COMMANDING THE PRODUCTION OF DOCUMENTS


FILE No .568 07/28 '06 16 :52 I D :BERMAN DEVALERI 0 FAX : 4154336382 PQGE 3/ 16

2 I ( PLEASE TAKE NOTICE that punwnt to Rules 26,34 and 45 of the Federal Rules of Civil I 3 1 I Prooedurq plaintiffs will inspect and copy the documents idartifid in the schedule attached to the I 4 accompanying subpoena that are in the possession, custody or control of the following third party: I I I

SUBPOENAEDPARTY PLACE OF PRODUCTION Collttte, Erickson, Fanner & O'Neill LLP Bman DeVaIerio Pease TabacCo

Burt & Pucillo 425 California Street, Suite 21 00 San Francisco, CA 94104

Said production will take place on or before August 18,2006 at 10:OO a.m. at the above-

10 listed address, or such other location as i s mutually acceprable to the above-listed third party and I I I l 2 11 This production is pursuant to the accompanying subpoena commanding the production of

13 documents issued by plaintiffs' counsel on behalf of the United States District Court. No testimony I I 14 is required by the subpoena, and no one need appear from the third party or for any of the parties in I I 15 this action at this time. I I I

PLEASE TAKE FURTHER NOTICE that the parricular above-Iisted third party may be held I 17 11 in conrempt of court pursuant to Fcd. R Civ. P. 4S(e) if the party fails without adequate excuse to I 18 I I obey the subpoena served upon it, and that it has certain legal rights in response to plaintiffs' I 19 1 I subpoena served upon i t as provided in Fed. R. Civ. P. 45(d) and (e). I

Liaison Counsel,for Lead Plainti Connecticut if Retirement Plums and Trust Fun

20

2 1

22

23

24

25

26

[C 02-1 486 CW] NOTICE OF SUBPOENA TO COLLETTE, ERICKSON, F W R & OWEILL LLP COMMAND~NG THE PRODUCTION OF DOCUMENTS 1

DATED: July 28,2006

425 California Street, Suite 2 100 San Francisco, CA 94 1 04 Telephone: (415) 433-3200 Facsimile: (415) 433-6382


FILE No. 568 07/28 '06 16 : 52 I D : BERMAN DEVALER I 0 FAX:4154336382 PQGE 41 16


I, Tyler Kelly, declare that I am over the age of 18 years and not a party to this action.

following, by placing same in scaled cnvclopes, aExing proper first class postage, and

depositing them in the United States Mail at San Fmoisco, California:

3

4

5

Melvin 8. Goldman Jordan Eth Tem Garland HoIly H. Tambling Morrison & Foerster LLP 425 Market Street San Francisco, CA 94 105

My business address is 425 California Street, Suite 2100, San Francisco, CA 94104. On July

28,2006,I siwed NOTICE OF SUBPOENA TO COLLETTE, ERICKSON, FARMER

& O9NEIII[IL LLP COMMANDWG THE PRODUCTION OF DOCUMENTS on the

Howard S, Cam Beller Ehrmau White & Mkaaliffe, LLP 333 Bush Street San Francisco, CA 94 104

Solomon B. Cera Laurence D. King Jo hM.Barton Ka Ian Fox & Kilsheimer LLP GZ ~ e m e t t Cera & Sidsner LLP 60 Montgomery Street, Suite 300 595 Marker Street, Suite 2300

P San Francrsco, CA 941 1 1

San Francisco, CA 94 105

Aaron W. D a d q Juden Justice Reed Willem F, Joncleer Scbubert & Reed, L.L.P. Two Embarcadero Center Suite 1660 San Frmcisco, CA 941 1 1

Carol Valerie Gilden Michael e. Moskovitz Much Sbdist Reed Denenberg Ameat & Rubenstein I91 N. Wa&er Drive, Suite 1800 Chicago, IL 6060 1 - 1 095

Francis M, Gre orek f Betsy C. Mani old Francis A. Eottini, Jr. Wolf Haldenstein Adler keemaa & H e n U P 750 B Street Suite 2770 San Dicgo, CA 92 10 1

Richard S.E, Johns Ki peman & Johns 57 5 ost Street, Suite 604 San Francisco, CA 94 I04

Michael D. Braun Timothy J. Burke StuU Stull & Brody 20940 Wilsbire Blvd., Suite 2350 Los Angeles, CA 90024

Andrew L. Barroway Stuart L. Bennan SchlMin & Barrowrty LLP 280 Kin of Pwsia Road Radnor, 5 A 19087

[C-02-1486 CW] CERTIFICATE OF SERVICE


FILE No ,568 07/28 '06 16 :52 ID: BERMRN DEVALER 10 FRX : 4154336382 PRGE 5/ 16

Michael L. Charlson Heller Ebrman White 4 McAulifTe, LLP 275 Middlefield Road Menlo Park, CA 94025

5

6

7

8

Gregory M. Egleston Bernsteln, Lietihard & Liftahitz LLP 10 East 40th Street, 22nd Floor New York, NY 100 1 6

Steven E. Cauley Curtis L. Bowman Randall K. Pulliam CauIey GeUer Bowrnm & Coates, U P P.O. Box 25438 Little Rock, AR 72221

9

10

11

John Frith Stewart Segal, Stewart, Cutler, Catlett, Lindsay & Janes, PLLC 1400-B Waterfront Plaza 325 West Main Street Luuisville, KY 40202

Marc S, Henzel Law OfBces of Marc 8. Hemel 273 Montgomery Avenue, Suite 202 Bala Cynwyd, PA 19004

William B. Fedeman Fedeman & Sherwood 120 N. Robinson, Suite 2720 Oklahoma City, OK 73 102

Andrew M. S o b Patrick A. Klingrnan Schatz & Nabel, P.C. 330 Main Street Hartford, CT 06106

Jules Brody Aaron L. Brady Stull, Stull & Bmdy 6 East 45th Street New York, NY 10017

Kevin J. Yourman Jennifer Williams Behram V. Parelch Jordan Lurie Wdss & Yourmaa 19040 Wilshire Blvd., 24th Floor h s Angels, CA 90024

Steven J. Toll Mark S. WilIis Cahen, Milsteig Hausfeld & Toll, PLLC 1 100 New York Avenue, N. W. West Tower, Suite 500 Washington, DC 20005

Lionel 2. Glancy Michael Goldberg Glancy & Bhkow LLP . 180 1 Avenue of the Stars, Suite 3 1 1 Los Angeles, CA 90067

Alfred G. Yates, Jr. Law Offices of Alfred G. Yates, Jr. 5 19 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 1521 9

Anthany Bologoese Bolagnese & Associates LLC. One Penn Center Plaza 1617 JFK Blvd., Suite 650 Philadelphia, PA 19 103

Jeffiey P. Fink Robbins Umeda & Nuk, U P 61 0 West Ash Street, Suite 1800 San Diego, CA 92101

Curtis V. Trinkb Law OWces of Curtis V. TriPko 16 West 46th Street, 7th Floor New York, NY 10036

Bmce Q. Murphy Law Offices of Bruce G. Murphy 265 Lloyds Lane Vem Beach, FL 32963



F I LE No ,568 07/28 ' 06 16 :53 I D : BERMRN DEVRLER I 0 FAX : 4154336382 PAGE 6/ 16

Marc A. Topaz Paul J. Scarlato Schiifria & Bsrroway Goldman Scarlato & Karoa PC Three Bala Plaza East, Suite 400 101 West Elm Street, Suite 360 Bala Cynwyd, PA 19004 . Conshohocken, PA 194283

John G. Emerson, Jr. The Emerson Em 830 Apollo Lane Houston, TX 77058

David R Scott James E. Miller Scott & Scott, LLC 108 Norwich Avenue Colchater, CT 064 15

Michael Donovan Donovan Searles, LLC 1845 Walnut Street, Suite 1 100 Philadelphia, PA 19103

Shersie R. Savctt Barbara A. Podell Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103

Deborah R. Gross Charles J. Piven Law OfEces of Bernard M. Gross, P.C. Law Offlce~ of Charlee J. Piven, P.A. 1 5 15 Locust Street, 2nd Floor The World Trade Center - Baltimore Philadelphia, PA 1 9 102 401 East Pratt Street, Suite 2525

Baltimore, MI) 2 1202

David M. Goldstein Joseph P. Ch1and Maricic & Goldstein, LLP Klein & Solomon, LLP 10535 Foothill Blvd., Suite 300 275 Madison Avenue, 1 ltb Floor Rancho Cucarnonga, CA 9 1 730 New York, NY 1001 6

Fred Taylor Isquith Mel Urbach Wolf, Haldensteia, Adler, Freeman & Hen Law Offices of Me1 Urbacb LLP One Exchange Place, Suite 1000 270 Madison Avenue Jersey City, NJ 07302 New York, NY 10016

Kenneth A. Elan Kimberly Walker Law Officm of Kenneth A. Elan Berger & Montague, P.C. 2 17 Broadwa , Suite 404 1622 Locust Street NW ~ork . N); 10007 Philadelphia, PA 191 03

William B. Pedernian James A. Caputo Dreier Baritz & Federman S ector Roseman & Kodroff, PC ,120 N. Robinson, Suite 2720 4 b' 1 8 Street, Suite 1600 Oklahoma City, OK 73 102 San Diego, CA 92 10 1

Karen M. Hanson Donald J. Enright Lackridge GriDdal Nauen PLL.P. Andrew J. Morganti 100 Washington Avenue South, Suite 2200 Finkelstdo Thompson & Lou Minneapolis, MN 55401 1055 Thomas Jefferson Street

Washington, D.C. 20007 e

Bruce D. Oaks Christopher Love11 Law Offices of l3ruce D. Oaks Christopher J. Gray 8050 Watson Road, Suite 240 LoveU & Stewart, L.L.P. St. Louis. MO 63 1 19 500 Fifth Avenue

New York, NY 101 10


FILE No .568 07/28 '06 16 :53 I D :BERflQN DEVALERIU FQX : 4154336382 PAGE 7/ 16

Jsrcqueline Sailer Rabin & Peckel, L.L.P. 275 Madison Avenue New Yo& NY 10016

Sheme R. Savett Berger & Moatague, P.C. 1622 Locust Street Philadelphia, PA 19103

Jeffrey Neirnan. Tbe Neimarr Law Firm 1 4 12 Coney klmd Avenue Brooklyn, NY 1 1230

Barbara A. Podell Sivett FrutMn PodeU & Ryan, P.C. 1622 b u s t Street Philadelphia, Pennsylvania 19 103

Lynn L'urcaIn Sarlco

Pa Dcsr Elizabeth . Leland Keller Rohrback LLP 1201 Third Avenue, Suite 3200 Seattle, WA 98101

Paul J. Geller Lersch Cougbtin Stoia C;eUer Rudlaaa & Robblas U P 197 South Federal Highway, Suite 200 Boca Raton, Florida 33432

I declare under penalty of perjury pursuant to the laws of the United States that the


Executed at San Fmdsco, California, on July 28,2006.

[C-02-1486 Cw CERTIFICATE OF SERVICE


F 1 LE No. 568 07/28 '06 16 : 53 I D : BERVRN DEVALER I O FAX : 4 154336382 PAGE 8/ 16


NORm ERN DISTRICT OF CAlLlFQRNIA In rc: JDS Uniphase Corporation Stcurides Litiption

SUBPOENA IN A CIVIL CASE v.

TO: Colletre Ericksan Farmer & O'Neill LLP 235 Pine Streer, Suite 1300 San Francism, CA 941 04

YOU ARE COMMANDED to zppear in the United States District court at the place, date, and rime specified below tesdfy in the above case.

PUCE OF TESTIMONY

I

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in tho above case.

I

YOU ARE COMMANDED to produce and permit inspectionand copying of the followingdocummts or objects at the place, dace, md time specified below ( l i t documenldw objects):

PLACE OF D E ~ S ~ O N

See anached Schedule A.

DATE A M TIME

Bennan DeValerio, et al., 425 California Sue& Suite 1100, San Fnmcisco, CA 94104 ( August 18,2006 10:OO am, 1.

YOU ARB COMMANDED to permit inspection of the following premises a1 the date and time specified below.

Any orgnnirarion nor a party ro his suit char i s subpoenaed for the king of a deposition shall designate one or more officers, direcrors, or mmoging agents, or other persons who consent to n?slify on i ts behalf, and may set forth, Cr caoh person designated, the rnatrcrr on which the person will asriry. Federal Ruler afCivil Procedure, 30(b)(6).

PREMISES , ' DATE AED TIME

Chrislopher T. Heffelfiinger, Ey. 415 California Sue~, Suite 2100, San

( S n Rvls 45, Fadoral Ruler ofcivil torrdurr. P W I ~ C O 0 en nerl pago)

lSSVMG OPFICEX'S SIGNATURE A OR DEFENDANT)

I P

DATE

July 28,2006

ISSUMG OFFICER'S NAME, ADDRESS AND P H O ~ N U M B E R \


/ 16

- - - -- --


SERVED

SEWED ON (PRINT WME) MANNER OFSERVICE

SERVED BY BYrPRlNTNm TIlL.E

I declare under penalty of perjury under the laws of tho United States of America that the foregoing information contained in thc Proof of Service is true and correct.

Executed on DATE SIGNATUREOF SERVBR

ADDRESS OF SERVER


FILE No ,568 07/28 '06 16:53 1D:BERMAN DEVALERI D

Rulc45, Fedem1 Ruts o f Civil Procedure, Pans C & D:

(c) PROTECrrQN OFPERSONS SUBJECTTO SUBF'CSNAS.

(1) A puey or ur rrwny telponsibk for tho ivruanco and scrvicc of a rubpocnsshll t d e reasamble stops r~ avoid impoinsunduoburdon ortrwrue on a pason subjscl to chrP wbpoei. The corn ia blblrof uhich rho sub& wuirrued dhallcnforct t b duly and impose upanthe ~ a r ~ or wwmw in hcaoh ofthis duly M lppmpnatc sanction which my includt. b& h norlimikl to, loar arninv a d ~ m b k at~omey's Tee.

(2) (A1 A pnoaconvnmdcd lo produceudpermit iu+w und copying or &bitted books, papm, domimu or rsngiblc &hp, or b p d o a of pmni~c~ wed nor appear in paraon at rhcplacc of prcduclion or inspection unIcvrr cmnmded ro rppcar for dcposirioa, hcario8 or vial.

produce and e i r inspection and copying m y , withrn Ib days lner smict of rubpomaor before rhc rim6 specifd for compliance if 6uch time is ledsrhan 14 dm a h favicc. s w b umn rbc parry or attorney dcsiguued in tbe UI~IXKDI &tm objection ~a inspcAon or~&~i&ofany or i l l of&ddwrcd matbials ar oftbc premircu. tf 0 b j ~ l i 0 ~ i s made.rhc pmy ~f fv ing rh0~UbpOCm shall not bc entitled loinspea and copymntrriala a inspcct rhs m i r e s a c c p ~ pursuant lo an ordciofihc courl by which the subpma wns kwd. If objocr iun hrs bocn made, rhc parry savingdlerubpocna may, uponnotice totha person commnndod to produce, move bl any tima for 80 order ro oonipcl the production. Such an order to comply pduction shall pornor any person who Cl not a pany or un officer of a p a y fom tigniRQnt cxpcnso faulting tarn thc iwpaxion and copying commded.

(3) (A) On timely mion rhe corn by which a rubpoens ws hued shall quash or Wdi& thc subpaam if ir

(i) GIs to allow ramable time for umrplianoo. (ii) r a q m r a a a p s ~ n w b a i r n o r ~ p s r r l o r ~ o ~ m d r p u l y m

vrwl to r place more Ban 100 milw 6um the place w h m that pcqon rclridcr, is cmployod or m[lulsrly tnnsmsbusinca in pcmn, crccptthpt, subjcot totho provieion~of c l a w (c) (3) (8) (iiD oflhis mlc, such a p e r m my in order to , alknd

FAX : 4154336382 PAGE 10/ 16

trid bo commarxld ro uavcl fmm any such phae within Bestate in which the trial is held, or

(i) require6 disclosure of r trade ~ s m or other contidonrial m ~ ~ c h dovclopnlsnt, or commacisll infonnudm. or

(ii) tcquitm. disclasum of an unmuincd cxperr's opinion or informidon not dcricribingspccilice~ontsoroccurro~car iudleputemd ;earlling from the crpcn'r mdy mbde n e bl rhc request olsny paw, or

(iiil r q u b a person whois not a parryor an oficcr ofa panyro incur ruhmtial expense 10 mvcl mom thua 100 miles D awcnd rrial. rhc court IIW. m p m l o ~ ~ a puaon tubjoctro or affcercd by the wbpocnn, quash or modify the lubp4enq or, if the party in who bchalf the subpocne is i m e d shows b

~ubstmtial wed for he rcrrimony at m s ~ a l rhar annot be &ewiac me1 wirhout undue hardship a d a s s w duu tho pmn to whom tbc subpotnu is rddrcsscd will bc ruuoavbiy c4mpCnbUCct, he c o w may order appomnec ov production o ~ l y upon speeifid conditims.

(1) A pmon reponding lo a rubposne to product documenas shall produce Ihm as they arc k g r in rho usual courso of bwiaoos or shall orgnnire and lvhl

(2) Whea i n f o ~ i o n subject ma subpoena iswithheld onr claim tbat it is privileged or lurbj~cl to prolcctim r ma1 pnpaurion morials, tho clsh &dl be nude expressly md Wl k suppod by a desctiption of rho natulr of thc docunmu, oonununicsrions, or things not produced rhut is s-uficienr 10 wr ble tho demanding pany to oontcsl the claim.


FILE No ,568 07/28 '06 16 :53 ID :BERHRN DEVALERIO FAX : 4 154336382 PAGE 11/ 16

SCHEDULE A

(Collette, Ericksoa, Fanner & O'Nelll Subpoena)

I. DEFINITIONS


applicable Local Rules arc adopted and treated as if hily set forth herein. The words and


1. 'LYo~" or ''yaw'' means ColIette, Erickson, Farmer & O'Neill LLP, to whom this

subpoena is addressed, or any owner, partner, directar, oficcr, employee, agent, custodian,

parent, subsidiary, affiliate, preclecessor, successor, attorney, accountant, representative or other

persons purporting to act on its behalf. The term "representative," as used in this definition,

mcms any person who has worked or is working for you, or has acted or is now acting on your

behalf.

2. "JDS" meam JDS Uniphase Corporation and each of its atf Iiates, divisions,


limited to, Uniphare ~orporatioi and .IDS FFTEL, Inc.), and all present iold fonner officers,

directors, partners, principals, employees, representatives, agents, attorneys, accountants,

advisors and all other persons acting or purporting to act on behalf o f any of them.

3. "OCLP' means Optical Coating Laboratory, inc., and any and all of its

subsidiaries, divisions, subdivisions, practice groups, departments, affiliates, predecessors,

successors, joint ventures, corporate siblings, present and former officers, directors, partners,

principals, employees, representatives, agents, attomeys, accountants, advisors and all other

persons acting or purportfng to act on behalf of any of them.


FAX : 4154336382 PRGE 12/ 16

4. "Document" or r'docurnents" means any written, printed or electronically stored

information, inoluding writings, drawings, graphs, charts, photographs, sound re'cordings,

images, and other data or data compilations srored in any medium &om which information can

be obtained. A draft or non-identical copy is a separate document within the meaning of this

term.

5. "Concerning" means relating to, referring to, describing, evidPncing or

constituting.

5. "Penod'oor sparsons" m e ~ s any mtural person or any business, lcgrl or

government4 entity, association or arrangement.

7. "Communication" means the tmmittal of information (in the fonn of facts,

ideas, inquiries or otherwise) and includes any utterance, spoken or heard, whether in person, by

telephone or otherwise and refers to all written, verbal or other communications and/or exchange


8. "Individual Defendants" means Josef Straw, Kevin Kalkhoven, Anthony R.

Muller and Charles 3. Abbe, and any person, employee, agent or representative acting on their

behalf.





"of' shall be consrmed either disjunctive.ly or conjunctively as necessary to bring within the

scope of a request all responses that might otherwise be construed to be outside its scope; and the

use o f the singular form of any word includes the plural and vice versa


FILE No .568 07/28 '06 16 :54 I D :BUIMQN DEVALERlO FRX : 4154336382

11. "2000 Acquisition of OCLI" means JDSas acquisition of OCLI completed in or


11. INSTRUCTIONS

1. All documents shdl be produced as they are kept in the usual course of business ,

so that Lead Plaintiff can ascertain the filcs in which they were located, their relative order and

how such files were maintained.

2. All documents shall be produced in their entirety, including dl attachments and

enclosures, and in their origind folder, binder or other cover or container. Whenever a document

or group of documents is removed horn a file folder, binder, file drawer, Ale box, notebook or

other cover or container, a copy of the label of such cover or other container must be anached to

the document or group of documen~s.


in electronic format, You should confer with counseI for Lead Plaintiff as to the appropriate

format before producing electronic documents. All such documents shaII be accompanied by a

copy of all metadata concerning such documents, including all information concerning the dates

the documents were created, modified or distributed, and the authors and recipients of the

documents.


otherwise, as a ground for not producing responsive documents, please so state, separately

speci@ing for each such document:


b. the name end title of each addressee andlor any other actual or intended



c. tbe date of the document;



e. the name and title of each person to whom the contents of the document

have ken disclosed;

f a description of the nature and subject matter of the document; and

g. a statemear of the basis on which ir is claimed that tlu? document is



disclosure by privilege, any such document must be produced in fill ~ r h the portion claimed to

be protected redacted and the word "redacted" inserted in its place. With respect to each such


6. You are required to produce documents or things in your possession, custady or


directfirs, officers, agents, employees, representatives, attorneys, subsidiaries, managing agents

or affiliates.

7. All pages now stapled or fastened together should be produced stapled or frrstened

together, and each document that you cannot legibly copy should be produced in its original

form.


deletion or exclusion regardless of whether you consider the entire document to bc relevant or

responsive.


F 1 LE No. 568 07/28 '06 16 :54 I D : BERMRN DEVFlLER I0 PQGE 15/ 16


request, or Definition or Insmction applicable thereto, such claim shall not be utilized by you as


111. RELEVANT TIlW PERIOD

Unless otherwise indicated, the Relevant Time Period is fkom January 1, 1999 to the


whole or in part, to the Relevant Time Period, os to events or circum&tances during such period,

even though dated, prepared, generated or received prior to or subsequent to that period.

Iv. DOCUMENT WOUESTS

1 . All .documents concerning tbe 2000 Acquisition of OCLI, including, but not

limited to:

a, All documenrs concerning any communications between or among you,

OCLI, JDS or any other person;

b. ~ l l documents concerning any "comfort" or opinion lettas fram lawyers,


c. All documents concerning any fairness opinions provided by you;

d. A11 documents concerning any due diligence investigation of JDS or

OCLI;

e. Documents sufficient to identi@ the names, titles, reporting relationships

and last hown addresses of all pasons involved in any due diligence of JDS or OCLI;

and

f, All notices, minutes, exhibits, notes, agendas or resolutions relating to

meetings in which JDS was discussed, all other documents distributed or utilized 'in


FILE No ,568 07/28 '06 16:54 ID :BERHRN DEVRLERIO FAX : 4154336382 PAGE 161 16



2. Any electronic records, including c-mail back-up tapes, of any documents


3. Documents sufficient to M y describe your filing and record keeping system and

document preservation or destruction policies, including, but not limited to, those relating to

electronic recordkqing, archiving and storage.


Exhibit 15


FILE No. 576 08/01 '06 15 : 11 ID : BERVAN DEVALER I0 FAX : 4 154336382 PAGE 2/ 16

Joseph J. Tabacco, Jr. (75484) Christopher T. Neffelfinger (118058) Nicole Laval tee (1 65755) BERMAN DeVALEEUO PEASE TABACCO

BURT & PUCILLO 425 California Street, Suite 2100 San Francisco, CA 94 1 04 Telephone: (41 5 ) 433-3200 Facsimile: (4 15) 433-6382 Email: [email protected] Ernail: [email protected] Ernail: [email protected]

I1 Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Tmst Funds

Barbara J. Hart Jonathqn M. Plasse Anthony J. Hamood ~ichae i W. Stocker LABATON SUCHAROW & RUDOFF, LLP I00 Park Avenue, 12th Floor New York, NY 100 17 Telephone: (2 12) 907-0700 Facstmile: (2 12) 883-7062

Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds .



OAKLAND DIVISION

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

' Class Acrion This Document Relates to: All Actions 1

) AMENDED NOTICE OF SUBPOENA TO ) SULLIVAN & CROMWELL LLP ) COMMANDING THE PRODUCTION OF

I I DOCUMENTS

[C 02-1486 CWJ AMENDED NOTICE OF SUBPOENA TO SULLIVAN & CROMWELL LLP COMMANDING THE PRODUCTION OF DOCUMENTS


FILE No ,576 08/01 '06 15: 11 ID :BERMAN DEVALER I0 FAX :4154336382 PAGE 3/ 16

I I I

PLEASE TAKE NOTICE that pursuant to Rules 26,34 and 45 of the Federal Rules of Civil I I

3 11 Procedum plaintiffs will inspar and copy the documents identified in the schedule attached to h e I


4 accompanying subpoena that an in the possession. custody or control of the following third party: I I PLACE OF PRODUCTION Glancy Binkow & Goldberg LLP 1801 Ave. of the Stars, Suite 3 11 Los Angeles, CA 90067

5

6

1) Said production will talc= place on or before August 22,2006 at 10:00 a.m. at the above- 1

SUBPOENAED PARTY Sullivan & Cromwell LLP

9 )I listed address, or such other location as is mumlly acceptable to the abovelisted third party and I lo 1 1 plaintiffs* counsel. I

13 1 ( i s required by the subpoena, and no one need appear from the third party or for ray of the parties in I

11

12

l 4 I ( th is action at this time. I

This production is pursuant to the accompanying subpoena commanding the production of

documents issued by plaintiffs' counsel on behalf of the United States Dimict Courf. No testimony

l5 ( 1 PLEASE TAKE FURTHER NOTICE that the particular above-listed third party may be held( 16 )I in contempt of court pursuant to Fed. R. Civ. P. 45[4 if the party fails without adequate excuse to I 17 11 obey the subpoena served upon i& and that it hits certain icgd rights in response to plaintiffs' I I * I I subpoena served upon it as provided in Fed. R Civ. P. 45(d) and (8).

DATED: July 28,2006 BERMAN DeVALENO PEASE TABACCO BURT & P U R W Q

Joseph J. Tab-, Jr. <-) Christopher T. Heffelfinger Nicole Lavallee 425 California Street, Suite 2100 San Francisco, CA 941 04 Telephone: (4 15) 433-3200 PacsimiIe: (41 5 ) 433-6382

Liaison Counsel for Lead PlaintkflConnecticu~ Rerirement Plans and Tru.st Funds

28

[C 02-1486 CW] AMENDED NOTICE OF SUBPOENA TO SULLIVAN & CROMWELL LCP COMMANDING THE PRODUCTION OF DOCUMENTS


FILE No .576 08/01 '06 15: 11 ID :BERMAN DEVALERIO FAX : 4154336382 PQGE 4/ 16

Barbara J. Hart Jonathan M. Plasse Anthony J. Harwood Michael W. Stocker LABATON SUCHAROW & RUDOFF, I,LP 100 Park Avenue, 12th Floor New York,NY 10017 Telephone: (2 12) 907-0700 Facslrnilc: (2 12) 883-7062

Lead Counsel for Lead Plaintrythe Connecticut Rcrirement Plans and Tnrrt Fun&

[C 02-1486 CW] AMENDED NOTICE OF SUBPOENA TO SULLIVAN & CROMWELL LLP COMMANDING THE PRODUCTION OF DOCUMENTS


FILE No .576 08/01 '06 15 : 11 ID:BEf?MAN DEVRLERIO 1 I

FFIX : 4154336382 PAGE 5/

4 94104. On August 1, 2006, 1 sehed AMENDED NOTICE OF SUBPOENA TO I I

16

2

3

6 DOCUMENTS on the following, by placing same in sealed envelopes, affixing proper first I I

I, Sheralyn Tuiasosopo, declare that I am over the age of 18 years and not a party to

this action. My business address is 425 California Street, Suite 2100, San Francisco, CA

7 11 class posrage, and depositing than in the United States Mail at San Francisco, California:

Melvin R. Goldman Jordan Eth Terri Garland Holly H. Tambling Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105

Solomon B. Cma Jose h M. Barton Gol X Bennett Ccra & Sidener LLP 595 Market Street, Suite 2300 San Francisco, CA 94105

~ gi;zg;zf3x Schubert & Reed, L.L.P. Two Embarcadero Center Suite 1660 San Francisco, CA 941 1 1

Carol Valerie Gilden Michael e. Moskovitz Much Sbelist Freed Deaeuberg Ament & Rubenstein 191 N. Wa~ker Drive, Suite 1800 Chicago, IL 60601-1 095

Francis ,M. Gregorek Betsy C. Manifold Francis A. Bottini, Jr. Wolf Haldeastcin Adler Freeman & Hen LLP 750 I3 Street, Suite 2770 San Diago, CA 92 1 0 1

Howard S. Cam Heller Ehrman White & Mcauliffe, LLP 333 Bush Street San Francisco, CA 94104

Laurence D. f i g Kaplan Fox & Kilsheimer LLP 60 1 Monteornery Street, Suite 3 00 San Francrsco, CA 941 11

Richard S.E. Johns Ki permnn & Johns 579ost Stmet, Suits 604 San Francisco, CA 941 04

Michael D. Braun Timothy J. Burke Stull Stull& Brody 10940 Wilshire Blvd., Suite 2350 Los Angeles, CA 90024

&drew L, Barroway Stuart L, Berman Scbifftin & Barroway LLP 280 Kin of Pmssia Road % Radnor, A 1 9087

[C-02-1486 CW] CERTlFICATE OF SERVICE


FILE No .576 08/01 '06 15 : 12 I D :BERMAN DEVRLER I D I I

FQX : 4154338382 PRGE 6/ 16

Michael L. Charlson Heller Ehrman White & McAuliffe, LLP 275 Middlefield Road Menlo Park, CA 94025

Steven E. Cauley Curtis L. Bowman Randall K. Pulliam Cauley Geller Bowman & Coates, LLP P.O. Box 25438 Littlc Rock, AR 7222 1

Marc S. Henzal Law Offices of Marc S. Henzel 273 Montgomery Avenue, Suite 302 Bala Cynwyd, PA 19004

Me1 E. Lifshitz Gregory M. Egleston Bemstein, Liebbard & Liftshitz LLP 10 East 40th Street, 22nd Floor New York, NY 10016

John Frith Stewart Segal, Stewart, Cutler, Catlett, Lindsay & Jaaes, PLLC 140043 Waterfront Plaza 325 West Main Street Louisville, KY 40202

WiIliam B. Fcdcrman Federman & Sberwood 120 N, Robinson, Suite 2720 Oklahoma City, OK 73 102

Andrew M. Schatz Patrick A. Klingman . Schab & Nobel, P.C. 330 Main Street Hartford, CT 061 06

Jules Brody Aaron 1;. Brody Stull, Stull& Brody 6 East 45th Street New York, NY 1 001 7

Kevin J. Yourman Jennifer Williams B e h m V. Parekh Jordan Lurie Weiss & Yourman I9040 Wilshire Blvd., 24th Floor Los Angeles, CA 90024

Sleven I. Toll Mark S. Willis &hen,~ilste~n, ~aurfeld & Toll, PLLC 1 I00 New York Avenue, N. W, West Tower, Suite 500 Washington, DC 20005

Lionel 2, Blancy Michael Goldberg Glancy & Binkow LLP 180 1 Avenue of the Stars, suite 3 I I Los Angeles, CA 90067

Alfkd G. Yates, Jr. Law Ofices of Alfred G. Yates, Jr. 5 19 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 152 19

Anrhony Bolognese Bolognese & Associates LLC One Pcnn Center Plaza 16 17 JFK Blvd., Suite 650 Philadelphia, PA 19 103

Jeffrey P. Fink Robbins Urncda & Fink, LLP 610 West Ash Street, Suite 1800 San Diego, CA 92 101

Curtis V. Trinko Law Offices of Curtis V. Trinko 16 West 46th Street, 7th Floor New York, NY 10036

Bruce G. Murphy Law Offices of Bruce G. Murpby 265 Lloyds Lane Vero Beach, FI, 32963

[C-02-1486 C W] CERTIFICATE OF SERVICE .. 7


FILE No ,576 08/01 '06 15 : 12 ID :BERMON DEVALERI 0 . 1

FflX : 4154336382 PQGE 7/ 16

John G. Emerson, Jr. The Emerson Firm 830 Apollo Lane Houston, TX 77058

David R. Scott James E. Miller Scott & Scott, LLC J 08 Norwich Avenue Colchester, CT 06415

Paul J, Scarlato GOLDMAN SCARLATO & KABON PC - -

101 West Elm Street, Suite 360 Conshohocken, PA 19428

Michael Donovan Donovan Searles, LLC 1845 Walnut Streek Suite 1 100 Philadelphia, PA 1 91 03

Sherrie R. Savett Barbara A. Podell Bergcr & Montague, P.C. 1622 Locust Street Philadelphia, PA 1 91 03

Deborah R. Oross Charles J. Piven Law Offices of Bernard M. Gross, P.C. Law OftFces of Charles J. Phen, P.A. Wanmaker Building The World Trade Center - Baltimore 100 Penn Square East, Suite 450 401 East Pratt Street, Suite 2525 Philadelphia, PA 191 07 Baltimore, MD 2 1 202

David M. Goidstein Joseph P. Galand Maricic & Goldstein, LlLP Klein & Solomon, LLP 10535 Foothill Blvd., Suite 300 275 Madison Avenue, 1 Ith Floor Rancho Cucamonga, CA 91730 New Y ork, NY 1 00 16

Fred Taylor Isquith Me1 Urbach Wolf, Haldenstein, Adler, Freeman & Herz Law Offices of Me1 Urbach LLP One Exchange Place, Suite 1 000 270 Madison Avenue Jersey City, NJ 07302 New York, NY 1001 6

Kenneth A. Elan Kimberly Walker Law Offices o f Kenneth A. Elan Be er & Montague, P.C. 7 2 1 7 Broadway, Suite 404 162 Locust Street New Yotk, NY 10007 Philadelphia, PA 19 103

William B, Fedman Dreier Baritz & Federman 120 N. Robinson, Suite 2720 Oklahoma City, OK 73 102

James A. Caputo S cctor Raseman & Kodroff, PC 411 B Street, Suite 1600 San Diego, CA 92101.

Karen M. Hanson Donald J. Enright Lockridge Grindal Nauen P.L.L.P* Andrew J. Morganti 100 Washington Avenue South, Suite 2200 Finkelstein Thompson & Loughton Minneapolis, M?4 55401 1055 Thomas Jefferson Street N W

Washington, D.C, 20007

Bruce D. Oakes Christopher Lovell Law Offices of Bvuce D. Oakes Christopher J. Gray 8050 Watson Road, Suite 240 Love11 & Stewart, L.L.P. St. Louis, MO 631 19 500 Fifth Avenue

New York,NY 10110



FILE No .576 08/01 '06 15: 12 ID :BERNAN DEVALERIO FRX : 4 154336382 PFlGE 8/ 16

Jacqueline Sailer Rabin & Peckel, L.L.P. 275 Madison Avenue New York, NY 1001 6

Sherrie R. Savea Berger & Montague, F.C. 1622 Locust Street Philadelphia, PA 19 103

Jeffrey Neiman The Neiman Law Firm 14 12 Coney Island Avenue Brooklyn, NY 1 1230

Barbara A. Podell Savett Frutkin Podell & Ryan, P-C. 1622 Locust Street Philadelphia, Pennsylvania 19 103

Lynn L i l n Sarko Juli P. Des r Elizabeth r ~ e l a n d KeIler Rohrback LLP 120 1 Third Avenue, Suite 3200 Seattle, WA 981 01

Paul J. Geller Leracb Cougblin Stoia GeUer Rudman & Robbins LLP 197 South Federal Highway, Suite 200 Boca Raton, Florida 33432

I declare under penalty of perjury pursuant to the laws of the United Stares that the

foregoing is truc and correct.

Executed at San Francisco, California, on August 1,2006.

S heralyn ~uia!gho~o

[C-02-1486 C w CERTIFICATE OF SERVICE


FILE No ,576 08/01 '06 15 : 12 ID :BERMAN DEVRLER I0

AO 88 fRcv. 1 1/94) SubPoens in a Civil Case

Issued by the

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

In re JDS Uniphase Corporation Securities Licigacion

SUBPOENA IN A CIVIL CASE

Ca~eNurnhr:~ w.D.cal. C-02-1406 CW

TO: Sullivan & Cromwell LLP 3888 Cencury Park East Las Angelcs, CA' 90067-1725

MTE ANI) TlME

YOU ARE COMMANDED ro appear in t b United Slates Dbtricr Coun at the place, date, and time specified below to testifSI in rhc above case.

August 1, 2006

PLACE OF TESTIMONY

YOU ARE COMMANDED to appear at the place, date, and time specified bclow tn cestify at the taking of a deposition

COURTROOM

I YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objccrs at the place, date, and time specified below (list documents or objects):

in the above case.

See attached Schedule A.

PLACE OF DEPOSITLON DATE AND TIME

YOU ARE COMMAMED to permit inspection ofthe following premises at the date and time specified below.

PUCE

Glancy Binkow & Goldberg 1801 AVe ot the Stare #all, L . A . , CA DATE AND TIME

08/22/06 10:00 am

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons wbo consent to testify an its behalf, and may set forth. for each person designated, the manere on which the person will testify. Federal Rules of Civil Pmcedure, 30(b)(6).

PREMISES

1 DATE

DATE AND TIME

Christopher T. Heffel 425 California San Francisco, CA 94304 (415) 433-3200

' Ifwioa is pssbinp in Bwia olba rhM diaricr of imam, uuw dirrrricl undu cue number.


FILE No ,576 08/01 '06 15 : 12 ID : BERMAN DEVALERIO FAX : 41 54336382 PAGE 10/ 16

AO 88 (Kcv.llD4) Subpoena in a Civll Ctse

PROOF OF SERVICE DATE PUCE

SERVED

SERVED ON {PRINT NAMO MANNeR OF SWICE

SZRlED BY (PRINT NAME) TITLE

DECLARATION OF SERVER I declare under penalty of pe jury under the laws of the United States of America thar the foregoing information contained in the

Proof of Service is true and correct.

Executed on DATE S I W T W E OF 6 W E R

ADDRESSOFSERVER

- .. . .

Rule 45, Federal Rules of Civil Pmccdur& Parts C B: D:

(c) PROTECTION OF PERSONS SUBJECT TO SlIBPOENAS.

(I) A prny or m m n e y mpanrlblc for the k u d n ~ t 9nd reivico OF 8 subpoena sh l l dcc wisonablc aepr 16 avoid impailrg undue burden or exporn on r pnon subject to that subpoena. Thd coun on bOhl1of which the J~U~~OWI wnr rwal shall enfwc Ihia duty Md impose upon h e pa* or ~uomay in brsaoh of this dury an nppmpriale sanerion which may inclue, bul is not limit4 to. 10s camingt and reasonable aUomy"s 1'*.

(2) (A) A person commrndod lo produce and pcrmil inspsetion and copy in^ of daipawd boob, pb*, documenu or wnangiblt things, or in-ion of prcmiscJ nbzd na appear in pmon a1 Ihe place of production or inspection unlou commanded IO a w r for &position, MIE or Idd.

(0) Subjeot fa pagraph (d) (2) of his rule. a pcrsoll aommded ro d u x and permit inm&rion and copyin$ may, within I 4 day af~zt enice of i u w n a or hfore LIM bms specified.for cornp~iaiua i f such time is less t h ~ n I4 days a h rcrvicc, w e upon h pny or nnorncy designated in the subpoone wr imn objoaion o iwpdmion or copying of any or ~ l l of rhc designated mwtials ur of the premises, If objection b madq he parry awi~rg the suhpoens shall not be mdrlcd to inspect and copy materials or inspea the pr~mises except punwant m an ardcr ol'tht cow by which rha subpow wu issucd. I f objcrrion hss been mad*, he pamy swing rhc subpow rrmy, upon n06e to Ihc p o n commanded to produce, move nr my h e for M order to compbl rh6 prduaian. Such un ordcr IO comply produckn shall p r o m any Fwn who.is not a pany or an officrr of m pany from si,gnificabl eupnsa rcsulling From the inrpecrion and copying commsnddd.

(3) (A) On timely mofion. lhr court by which a subpocrur w& i u u d shall quash or modib B e rubpoem if il

(i) fans to allow rcruonrbl* dnw Lf wrnplia~~c,

(ii) rquiros a pcrwn who is IIO~ a pny or an ollicer orb p ~ y to travel 10 a placc molr UM 100 mil^ holn rhc place v h r e puronresidtr, is enployed or regularly ansrrrr businas in p a n , seep that, rub* to Qa provisions d'clrusc (0) (3) (I31 (iii) of his rule, rucb a peroon may in ordcr to

auend uial be commanded lo iml from any such place wirhm the slate in which the trial i s held. or rho demanding pany to w n m l the clsim.

(iii) rsquiret disclosure of privileged or orher protected malw and no excqrtinn or waiver npplics. or

(iv) sukjecf~ a person to undue burden.

(R) Ira subpoena

(i) requires disclosure at' a W& arcra or orher confidential research. &vclopmcn~ or commercial infomtios. or

(ii) requires didosurc o f an onrerained wtpefl's opinion or inlbrmaribn not describing swific evenu or occolTonw in dispute ud recullin& from h? ertpen's study ma& not nt the rcqutsr of any party, or

(iii) rrquircs a prson who is nor a party or M aIF1cm oTr wy IO i n n u rubmnanriri expense lo D'avcl more thsn 100 miles to a~&?nd uial, the coun may, w prowcr a p?nbn subjccl 10 or affecred by tho s u b p ~ , quash or modiry & & u b ~ . or. ifthe raw in VAIQ ttchalf the ~ubpacna is icsuedshom asubarsntirl need f& thc'mim& 0; mawrial WI cannot bc ofhcrwiw met withovl undue hardshrp and w u w that the person to whom Ihe w b p ~ b ddrewd will be ~ n a b l y campensawl, Ihc cowl may order appzaranct or ptoducfron only upon spcified condsront.

(d) DUTIES IN RESPONDING TO SUBPOENA.

( I ) A person m i n d i n g to a mbpoenatn pnduasdacwmt?l sMl produce hem u rhav arc k e ~ t in l c u w l couw of buineu or she11 organize and lube1 rhri ro co~espnd 'with the ca~gories in the demand.

(2) When infurmalion ruk+st lo r subpoco8 b widh ld on a claim that ii b privileged or wbjca m prowaion ay Uial pmpafafilrion rnatdal~, h e claim shall hd mado 3xprm1y and ahdl be snpponod by a description of the narure nr tllo documcnu. sammunicsrianr, or hinge no; produced tha~ is sumcienr to enable \he demanding p n y ul conmt h claim.


F I t E No .576.08/01 '06 15 : 12 I D : BERVAN DEVALER I0 FAX : 4154336382

SCHEDULE A

(SuIlivap & Cromwell Subpoena)



phases set forth below have the'following meanings:

1, "You" or "your" means Suilivan & Cromwell LLP, to whom this subpoena is

addressed, or any owner, partner, director, officer, employee, agent, custodian, parent,

subsidiary, affiliate, predecessor, successor, attorney, accountant, representative or other persons

purporting to act on iu behalf. The term 'bnpresentative," as used in this definition, means any

person who has worked or is working for you, or has acted or i s now acting on your behalf.

2. "JDS" means JDS Uniphase Corporation and each o f its amliates, divisions,

subdivisions, offices, joint ventures, subsidiaries, successors and predecessors (including, but nor

limited to, Uniphase Corporation and IDS FITEL, Inc.), and all present and former officers,

directors, partners, principals, employees, representatives, agents, attorneys, accountants,

advisors and dl other penom acting or purporting to act on behalf of any of them.

3. "SDL" means SDL? Inc., and any and a 1 of its subsidiaries, divisions,

subdivisions, practice groups, depmments, affiliates, .predecessors, successow, joint ventures,

corporalc siblings, present and former officers, directors, partners, principals, employees,

representatives, agents, attorneys accountants, advisors and all other persons acting or

purporting to act on behalf of any of them.

4. "Doc~rnent" or ' L d ~ ~ ~ m ~ n t ~ " means any written, printed or electronically stored

inforination, including writings, drawings, graphs, chms, photographs, sound recordings,


F I LE No. 576 08/01 ' 06 15 : 12 I D : BERMAN DEVRLER I0 FAX : 4 154336382

images. and orher data or data compilations stored in any medium from which information can

be obtained. A draft or non-identical copy i s a separate document within the meaning of this

term.

5 . "Concerning" means relating to, referring to, describing, evidencing or

constituting.

6. "Person'hr '"persons" means any natural person or any business, legal or


7. "Communication" means tht transminal of information (in the fonn of facts,

ideas, inquiries or otherwise) and includes any utterance, spoken or heard, whether in person, by

telephone or otherwise and refers to all written, verbal or other commrnications andfor exchange


8. "Individual Defendants" means Josef Srraus, Kevin Kalkhoven. Anthony R.

Muller and Charles J. Abbe, and any person, employee, agent or representative acting on their

behalf.


person, employcc, agent or representative acting on its behalf. .

10. Reference to any gender includes the other gender; the word "any" means "my


"or" shall be conmed either disjunctively or conjunctively as necessary to bring within the

scope of a request all responses that might otherwise'be construed ro be outside its scope; and the

use of the singular form o f any word includes rhe pIutal and vice versa.

11. "2001 Acquisition of SDL" means JDS's acquisition of SDL completed in or

about February 200 1.


FAX : 4 154336382 PAGE 13/ 16

11. INSTRUCTIONS

1. All documents shall be produced as they are kept in the ysual course of business

so that Lead Plaintiff crtn ascertain the files in which they were located, their relative order and

how such files were maintained,

2. All documents shall be produced in thoir entirety, including all attachments and

enclosures, and in thoir original folder, binder or other cover or container. Whenever a document

or group of documents is removed fiom a file folder, binder, file drawer, file box, notebook or

other cover or container, a copy of the label of such cover or other container must be attached to




fomat before producing tIectronic documents. All such documents shall bc accompanied by a

copy of all rnetadata concerning such documents, including all information concerning the dates

the documents were created, modified or distributid, and the authors and recipients of the

documents.


otherwise, as a for not producing responsive documents, please so state, separately

specifying for each such document:


b. the name and title of each addressee andfor any other actual or intended


c. the date of the document;


FlLENo.57608/01 '06 15:13 ID:BERUANDEVALERlO FQX : 4 154336382 PAGE 14/ 16

d. the name and titie of each person (other than stenographic or clerical


e. the name and rirle of each person to whom the contents of the dmument

. have been disclosed;


g. a statement of the basis on which it i s claimed that the document is

protected fiom disclosure.


disclosure by privilege, any such document must be produced in full with the portion claimed to

be protected redacted and the word "redacted" inserted in its place. With respect to each such '




directors, officers, agents, empbyees, representatives, artomeys, subsidiaries, managing agents

or affiliates.

7. All pages now stapled or fastened together should be produced stapled or fastened

together, and each document that you cannot legibly copy should be produd in its original

fonn.



responsive.


FILE No.576 08/01 '06 15~13 1D:BERNAN DEVRLERIO FAX : 4 154336382


request, or Definition or Instruction applicable thereto, such ccllrn shall nor be utilized by you as

a basis for refitsing to produce responsive documents.

111. =LEVANT TIME PERIOD

Unless otherwise indicated, the Relevant Time Period is fiom Janwy 1, 1999 to the


whole or in part, to the Relevant Time Period, or to events or circumstances during such period,

even rhough dated, prepared, generated or received prior to or subsequent to that period.

TV. DOCUMIENT REQUESTS

1. Ali documents concerning the 2001 Acquisition of SDL, including, but not

limited to:

a. All documents concerning any communications between or among you,

JDS, SDL or any other person;

b. All documents concerning any "comfort" or opinion letters from lawyers,


c. A11 documents concerning any fairness opinions provided by you;

d. A11 documents concerning any due diligence investigation of JDS or SDL;

c. Documents sufficient to identify the names, titles, reporting relarionships

and last known addresses of all persons involved in any due diligence of JDS or SDL;

and

f. All notices, minutes, exhibits, notes, agendas or resoIutions relating to

meetings in which JDS was discussed, all other documents distributed or utilized in


FILE No ,576 08/01 '06 15:13 1D:BERNAN DEVALERIO PAGE 16/ 16



2, Any electronic records, including e-mail back-up tapes, of any documents


3. Docments sufficient to hUy describe your filing and record keeping system and

document preservation or destruction policies, including, but not limited to, those relating to

electronic recordkeedng, archiving and storage.


Exhibit 16


i

1

2 UNITED STATES DISTRICT COURT

3 NORTHERN DISTRICT OF CALIFORNIA

4 OAKLAND DIVISIONCOPY

5

6

In Re JDS UNIPHASE CORPORATION Case No .

7 C-021486 CW

SECURITIES LITIGATION

8

9

10

11 * CONFIDENTIAL - UNDER PROTECTIVE ORDER *

12

13

VIDEOTAPED DEPOSITION

14

OF

15

MAURICE TAVARES

16

Ottawa Canada

17

Friday, November 3, 2006 .

18

19

20

21

22

23

24 Reported by :

ANNETTE ARLEQUIN, CSR, RPR

25 JOB NO . 9225

TSG Reporting - Worldwide 877-702-9580

1 * CONFIDENTIAL - UNDER PROTECTIVE ORDER

2

3

4 NOVEMBER 3, 2006

5 9:06 a .m .

6

7 Videotaped deposition of MAURICE

8 TAVARES, held at Fairmont Chateau

9 Laurier, 1 Rideau Street, Ottawa ,

10 Ontario, Canada, pursuant to Subpoena,

11 before Annette Arlequin, a Certifie d

12 Shorthand Reporter and a Notary Public of

13 the State of New York .

14

15

16

17

18

19

20

21

22

23

24

25


1

1 Confidential - Tavares - Under Protective Order

2 MR. ETH : Objection. It' s

3 incomplete . Its only part of a sentence .

4 A. I'm sorry . Your question is ?

5 (Question was read back as follows :

6 "QUESTION : And did you consider this

7 to be unreliable information?" )

8 A. This information was based on data

9 submitted, again, by the sales and marketing

10 organization . This is a reflection and a

11 condensation of the data as received and process

12 that I was relaying to Rick Fieber and others in

13 the organization . Full stop .

14 Q. Do you see where you say, "Obviously

IS the information above should be treated a s

16 sensitive and should not be further shared"?

17 A. Yes .

18 Q. Were you aware of the SDL merger

19 pending ?

20 A. I may or may not have been at that

21 time . I don't recall .

22 MS HART: I have no further

23 questions . Thank you, sir .

24 (Continued on next page to include

25 j urat . )


7 1

1 Confidential - Tavares - Under Protective Order

2 THE WITNESS : Thank you .

3 THE VIDEOGRAPHER : This is the end o f

4 the deposition. The time is 1644 . Going

5 off the record .

6 (Time noted : 4 :44 p .m . )

7

8

9

10

11 MAURICE TAVARES

12

13

14 Subscribed and sworn to before me

15 this day of 2006 .

16

17

1 8

1 9

2 0

2 1

22

23

24

25
