-,ase 486-CW Document 1681 Filed 10/21/2007 Page 1 of 6

Transcription

1 -,ase -CW Document Filed 0//00 Page of 0 0 JAMES P. BENNETT (BAR NO. ) JORDAN ETH (BAR NO. ) TERRI GARLAND (BAR NO. ) PHILIP T. BESIROF (BAR NO. 0) MORRISON & FOERSTER LLP Market Street San Francisco, California 0 Telephone:..000 Facsimile :.. pbesirof@mofo.com Attorneys for Defendants JDS Uniphase Corporation, Charles Abbe, Jozef Straus, and Anthony Muller MICHAEL J. SHEPARD (BAR NO. ) HOWARD S. CARO (BAR NO. 00) HELLER EHRMAN LLP Bush Street San Francisco, California 0 Telephone: () -000 Facsimile : () - michael.shepard@ hellerehrman.com howard. caro@ hellerehrman.com Attorneys for Defendant Kevin Kalkhoven Additional counsel listed on following page In re JDS UNIPHASE CORPORATION SECURITIES LITIGATION This Document Relates To: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA All Actions OAKLAND DIVISION Master File No. C-0- CW (EDL) DEFENDANTS ' OBJECTIONS TO PROPOSED TESTIMONY OF ALAN GUMENY MASTER FILE No. C-0- CW (EDL) sf- 0

2 -,ase -CW Document Filed 0//00 Page of MICHAEL L. CHARLSON (BAR NO. ) J. CHRISTOPHER MITCHELL (BAR NO. ) HELLER EHRMAN LLP Middlefield Road Menlo Park, California 0 Telephone: (0) -000 Facsimile: (0) -0 michael.charlson@hellerehrman.com chris.mitchell@hellerehrman.com Attorneys for Defendant Kevin Kalkhoven 0 0 MASTER FILE No. C-0- CW (EDL) sf- 0

3 ;ase -CW Document Filed 0//00 Page of Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, Charles Abbe, and Kevin Kalkhoven submit these objections to the proposed trial testimony of Alan Gumeny, an employee of Plaintiffs' law firm, whom Plaintiffs intend to call during the first week of trial. Plaintiffs do not contend that Mr. Gumeny has any percipient knowledge of the facts or events at issue in this case. Rather, they state that Mr. Gumeny a forensic accountant and veteran of the FBI and IRS who performs "in-depth analysis of accounting, auditing, and other financial issues" will testify about "the preparation of certain charts relating to sales of JDSU's stock by the individual defendants and other employees of JDSU." (Docket No. at (emphasis added).) The Court should preclude that testimony for at least four reasons. 0 First, the proposed testimony is irrelevant and thus inadmissible. Fed. R. Evid. 0. Plaintiffs have stated that Mr. Gumeny will testify about how Plaintiffs' law firm prepared charts of stock sales by the individual defendants and others. On its face, Plaintiffs' characterization of the proposed testimony establishes that Mr. Gumeny has no percipient knowledge bearing on "the existence of any fact that is of consequence to the determination of [this] action." Fed. R. Evid. 0. At most, Mr. Gumeny's proposed testimony may be relevant to the threshold question of whether Plaintiffs' charts may be shown to the jury an issue to be resolved by the Court, not the jury, and which has no bearing on any issue that the jury will decide. Accordingly, if the Court deems it necessary to hear evidence regarding the preparation of Plaintiffs' charts, it can 0 and should do so outside the presence of the jury. See, e.g., United States v. Soulard, 0 F.d, 00 (th Cir. ) (when seeking to present summary charts to the jury, a party must lay a foundation for those charts "out of the presence of the jury").' Second, Mr. Gumeny's proposed testimony would be prejudicial to Defendants. According to the web site of Plaintiffs' counsel, Mr. Gumeny is a "-year veteran of the FBI and IRS" and has "extensive knowledge in white collar crime matters." (See Profile of Alan E. Gumeny, available at (attached as Moreover, the parties have stipulated as to the dates, amounts, and proceeds of the stock sales of the Individual Defendants. In light of that stipulation, Mr. Gumeny's proposed testimony is irrelevant with respect to the Defendants' transactions. MASTER FILE No. C-0- CW (EDL) sf- 0

4 ,ase -CW Document Filed 0//00 Page of Exhibit A).) Testimony from Mr. Gumeny regarding his law enforcement background might mislead the jury into believing that this case is an enforcement action or prosecution by a government entity, rather than a private action brought on behalf of a private class of shareholders. At the very least, such testimony would create the false impression that this action has the government's stamp of approval. The Court previously has ruled that Plaintiffs cannot 0 create such a misleading impression by using the word "Connecticut" when referring to themselves. (Docket No. 0 at -.) Allowing Mr. Gumeny to testify concerning his background would allow Plaintiffs to improperly do an end-run around the Court's ruling and would prejudice Defendants' right to a verdict based solely on the merits. Fed. R. Evid. 0. Third, allowing Mr. Gumeny to testify would permit Plaintiffs to sneak in thinly-disguised expert testimony that Defendants would have had no opportunity to test beforehand. Plaintiffs have not identified Mr. Gumeny as an expert, nor have they produced any expert discovery relating to Mr. Gumeny. In addition to detailing his law enforcement credentials, counsel's web site describes Mr. Gumeny as a forensic accountant and C.P.A. who has performed "in-depth analysis of accounting, auditing, and other financial issues" in connection with securities litigation involving counsel. (See Ex. A.) Mr. Gumeny's background would imbue his testimony with an aura of expertise. The Court therefore should forbid that testimony. Fourth, the proposed testimony is precluded under Rule (c)(). Although Plaintiffs listed Mr. Gumeny on their trial witness list, they did not disclose him in their initial Rule (a) 0 disclosures or in any of their supplemental Rule (a) disclosures. Preclusion of his testimony is thus mandatory unless Plaintiffs can show the nondisclosure was harmless or that they had "substantial justification" for the omission. Fed. R. Civ. P. (c)(); Yeti by Molly Ltd. V. Deckers Outdoor Corp., F.d 0, 0 (th Cir. 00). Plaintiffs cannot show that the omission was harmless without conceding the irrelevance of Mr. Gumeny's testimony. As noted above, if the proposed testimony has no bearing on an issue of consequence to this action, it should be precluded under Rule 0. On the other hand, if it does bear on one or more such issues, Plaintiffs' failure to disclose Mr. Gumeny in their Rule (a) disclosures have deprived Defendants of an opportunity to test relevant evidence. MASTER FILE No. C-0- CW (EDL) sf- 0 Either way, Mr. Gumeny should be

5 -,ase -CW Document Filed 0//00 Page of precluded from testifying. Nor can Plaintiffs show "substantial justification." Before Plaintiffs submitted their trial witness list on September, 00, less than one month ago, Defendants did not know that Mr. Gumeny existed, let alone that he might have some connection to this case. His name did not appear in any of the documents reviewed or produced in discovery and did not arise during any of the depositions. Accordingly, there would be no basis for any suggestion that Plaintiffs were justified in omitting Mr. Gumeny from their Rule (a) disclosures because Defendants already were on notice of his connection to the case. Unable to make such a showing, Plaintiffs should be precluded from presenting his testimony to the jury. 0 0 Dated: October, 00 Dated: October, 00 MORRISON & FOERSTER LLP By: /s/ Terri Garland Terri Garland Attorneys for Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, and Charles Abbe HELLER EHRMAN LLP By: /s/ Howard S. Caro Howard S. Caro Attorneys for Defendant Kevin Kalkhoven MASTER FILE No. C-0- CW (EDL) sf- 0

6 -,ase -CW Document Filed 0//00 Page of GENERAL ORDER ATTESTATION I, Raymond M. Hasu, am the ECF User whose ID and password are being used to file these objections to the proposed testimony of Alan Gumeny. In compliance with General Order, X.B., I hereby attest that Terri Garland, attorney for Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, and Charles Abbe, and Howard S. Caro, attorney for Defendant Kevin Kalkhoven, have concurred in this filing. Dated: October, 00 MORRISON & FOERSTER LLP 0 0 By: /s/ Raymond M. Hasu Raymond M. Hasu Attorneys for Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, and Charles Abbe MASTER FILE No. C-0- CW (EDL) sf- 0

7 Case :0-cv-0- Document - Filed 0//00 Page of EXHIBIT A

8 Alan Gumeny Case :0-cv-0- Page of Document - Filed 0//00 Page of...:....::.:: Alan E. Gurneny j oined the Firm in 00 as an investigator and forensic accountant. A year veteran of the FBI and IRS, Mr. Gumeny has extensive knowledge in white collar crime matters. Mr. Gumeny manages an investigative staff and oversees investigations while working closely with Fii : n attorneys and other professionals to identify, develop, document and prosecute cases. Since joining the Firm, Mr-. Gunieny has assisted counsel by ::aging investigations into complex financial schemes involving violations of securities laws and regulations. He has displayed his acumen for securities litigation with in-depth analysis of accounting, auditing and other financial issues over a wide spectrum of industries. Though with the Firm for a short time, Mr. Gumeny ' s contributions have made a significant impact towards the advancement of claims against companies listed on major U.S. stock exchanges, where recoveries appear likely. Mr. Gumeny has over two decades of valuable experience investigating criminal cases involving fraud, financial crimes, counterintelligence and counterterrorism. Mr. Gummy is a licensed Certified Public Accountant, and a former supervisor of the FBI's Joint Terrorism 'f ask Force in New Jersey. He is a member of the American Institute of Certified Public Accountants, the New Jersey Society of Certified Public Accountants, the Society of Former Special Agents of the FBI, and the American Society for Industrial Security. Mr. Gunieny received a B.A. in Accounting and Economics from Rutgers University and began his career as an auditor with the IRS in New York City prior to joining the FBI. ;T:.. com/en/ourpeople/alan-gumeny. cfm?renderforprint=l 0//00