Case 4:02-cv-01486 Document 538 Filed 07/18/2006 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Joseph J. Tabacco, Jr. (75484 Christopher T. Heffelfinger (118058 BERMAN DeVALERIO PEASE TABACCO BURT & PUCILLO 425 California Street, Suite 2025 San Francisco, California 94104-2205 Telephone: (415 433-3200 Facsimile: (415 433-6382 Liaison Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds and Counsel for Oklahoma Firefighters Pension and Retirement System Jonathan M. Plasse Barbara J. Hart Anthony J. Harwood Michael Stocker (179083 Jon Adams LABATON SUCHAROW & RUDOFF LLP 100 Park Avenue New York, New York 10017-5563 Telephone: (212 907-0700 Facsimile: (212 818-0477 Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds [Additional counsel listed on signature page] IN RE JDS UNIPHASE CORPORATION SECURITIES LITIGATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Master File No. C 02-1486 CW REPLY DECLARATION OF MICHAEL W. STOCKER IN SUPPORT OF MOTION FOR LETTERS ROGATORY Ctrm: E, 15th Floor Before: Hon. Elizabeth D. Laporte 27 28 REPLY DECLARATION OF MICHAEL W. STOCKER IN SUPPORT OF MOTION FOR LETTERS ROGATORY Master File No. C 02-1486 CW
Case 4:02-cv-01486 Document 538 Filed 07/18/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I, MICHAEL W. STOCKER, hereby declare as follows: 1. I am an associate with the law firm of Labaton Sucharow & Rudoff, Lead Counsel for Lead Plaintiff Connecticut Retirement Plans and Trust Funds ( Connecticut or Plaintiff in the above-captioned matter. I have personal knowledge of the facts set forth herein, and if called as a witness, could and would testify competently thereto. 2. I make this Declaration in support of Lead Plaintiff s Reply in Support of its Motion for Letters Rogatory. 3. Attached to this Declaration as Exhibit 1 is a true and correct copy of the May 17, 2006 Consent filed in the Ontario Superior Court of Justice. 4. Attached to this Declaration as Exhibit 2 is a true and correct copy of the affidavit of David Vellequette, the Chief Financial Officer of JDSU, that JDSU filed in the Canadian proceedings relating to the application for Thomas Pitre s testimony. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed in New York, New York. 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 18, 2006 MICHAEL W. STOCKER REPLY DECLARATION OF MICHAEL W. STOCKER IN SUPPORT OF MOTION FOR LETTERS ROGATORY Master File No. C 02-1486 CW
Exhibit 1
0 ONTARIO SUPERIOR COURT OF JUSTIC E Court File No. : 06-CV-3425 1 BETWEEN : CONNECTICUT RETIREMENT PLANTS AND TRUST FUNDS, ON BEHALF OF ALL SIMILARLY SITUATED INVESTORS IN JDS UNIPHASE CORPORATION Applicant - and - THOMAS PITRE Responden t - and JDS UNIPHASE CORPORATION Moving Party CONSENT The parties, by their respective solicitors, hereby consent to the terms of the Order attached hereto in the form of Schedule A. Dated at Ottawa, Ontario, this day of May, 2006. GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors Suite 260 0 160 Elgin Street Ottawa, ON K1P 1C 3 Christopher C. Van Barr Phuong T.V. Ngo Andrew W. McKenna Telephone: (613 233-1781 Facsimile: (613 563-9869 Solicitors for the Moving Party, JDS Uniphase
0 Dated at Toronto, Ontario, this / day of May, 2006. FA N ARTINEAU DUMoULIN LLP Barristers and Solicitors P.O. Box 20, Toronto-Dominion Center Toronto, ON M5K 1N6 Christine P. Tabbert Telephone: (416 865-4465 Facsimile: (416 364-7813 Solicitors for the Applican t Dated at Ottawa, Ontario, this day of May, 2006. FRASER MILNER CASGRAIN LLP Barristers and Solicitors 1420-99 Bank Street Ottawa, ON KIP I H 4 K. Scott McLean Telephone: (613 783-9665 Facsimile: (613 783-9690 Solicitors for the Respondent
Schedule A Court File No.. 06-CV-3425 1 ONTARIO SUPERIOR COURT OF JUSTICE THE HONOURABLE JUSTICE Friday, the 19t h } day of May, 200 6 BETWEEN : CONNECTICUT RETIREMENT PLANTS AND TRUST FUNDS, ON BEHALF OF ALL SIMILARLY SITUATED INVESTORS IN JDS UNIPHASE CORPORATION Applican t and - THOMAS PITRE Responden t - and - JDS UNIPHASE CORPORATION Moving Party ORDER THIS MOTION, by the Moving Party JDS Uniphase Corporation ("JDSU", for an order joining JDSU as a respondent to the application being brought by the applicant (the "Application" for enforcement of a letter rogatory issued by the United States District Court, Northern District of California, Oakland Division on January 18, 2006 to the Ontario Superior Court of Justice (the "Letter Rogatory" was heard May 19, 2006 at the Ottawa Court House. UPON REVIEWING the Notice of Motion, affidavit of David Vellequette sworn April 17, 2006, and Motion Record of the Moving Party JDSU ; AND UPON REVIEWING the Consent of the Parties fled with the Court ; CND[ TORl26475a-00061119IO87s.I
0 THIS COURT ORDERS that JDSU be joined as a respondent to the Application with all of the rights and obligations of a respondent in an application, and shall be added to the style of cause as a respondent in the Application. THIS COURT ORDERS that there shall be no costs awarded on this motion. DM TOR1264750-0 0001 19 3 0878,1
CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS, ON BEHALF OF ALL SIMILARLY SITUATED INVESTORS I N JOS UNIPHASE CORPORATION - AND - THOMAS PITRE - AND - JDS UNIPHASE CORPORATIO N 0 APPLICANT RESPONDENT MOVING PART Y Court File No_ 06-CV-3425 1 Ontario Superior Cou rt of Justice Proceedings commenced at Toront o CONSEN T GOWLING, LAFLEUR, HENDERSON LLP 160 Elgin Street, Ste. 2600 Ottawa, Ontario K1 P 1 C3 CHRISTOPHER VAN BARR (LSUC # 38508E PHUONG T.V. NGO (LSUC# 42718L ANDREW W. McKENNA (LSUC# 45230W Tel : (613 233-178 1 Fax: (613 563-986 9 Solicitors for the Moving Party, JOS Uniphase Corporation Box 145
Exhibit 2
UUUUU J ONTARIO SUPERIOR COURT OF JUSTIC E Court File No.06-CV-3425 1 BETWEEN : CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS. -and- THOMAS PITRE Applicant Respondent and JDS UNIPHASE CORPORATION Moving Party AFFIDAVIT OF DAVID VELLEQUETT E 1, David Vellequette, of the City of Milpitas, in the State of California, MAKE OATH AND SAY AS FOLLOWS : 1. l am the Chief Financial Officer and Senior Vice President at JDS Uniphase Corporation, the moving party. As. such, I have knowledge of the matters to which I herein depose. Where my knowledge is based upon information and belief, I have indicated the source of my information. 2. JDS Uniphase Corporation ("JDSU" was created from a merger between Uniphase Corporation and JDS FITEL Inc. on or about June 30, 1999. JDSU's corporate head office is in Milpitas, California. JDSU also operates in Ottawa, Ontario.. 3. JDSU is one of the defendants in a class action commenced by the Connecticut Retirement Plans And Trust Funds (the "Applicant" in California for alleged
0 0000 6 violations of securities legislation. The class of plaintiffs are represented by the Applicant, as lead plaintiff. 4. The plaintiffs are seeking damages for alleged violations of the Securities Exchange Act of 1934 and the Securities Act of 1933. Among other things, the Applicant alleges that JDSU misted the market by reporting strong demand, making optimistic predictions, and failing to write down its inventory quickly enough. Attached as Exhibit "A" is a copy of the Second Amended Consolidated Complaint for Violations of the Federal. Securities Laws filed on January 9, 2004, which is the current complaint. 5. JDSU served its answer to the Second Amended Consolidated Complaint o n February. 28, 2005. JDSU has actively participated as a party during the course of the entire action to defend its interests. Attached as Exhibit "B" is the JDS U Defendant's answer to the Second Amended Consolidated.Complaint. 6. The Second Amended Consolidated Complaint seeks damages in an unspecified amount. I am informed and believe that estimates of potential damages range from approximately $100 million to several billion dollars, depending on the method used to calculate the estimate. The allegations made against JDSU have always bee n diligently denied and defended. Of course, any award in favour of the plaintiffs will have significant financial impact on the corporation and may cause JDSU to cease operations. This will impact its employees and shareholders. JDSU has a legitimate commercial interest in these proceedings. 7. The trial of this action is scheduled to proceed on August 13, 2007 for a period of nineteen (19 days. Attached as Exhibit "C" is a copy of the Minute Order and Case Management Order of November 28, 2005 setting out the litigation timetable for the U.S. action. 8. Thomas Pitre is the party subject to the application by the Applicant in the Ontari o 2
00 000 7 Superior Court of Justice. It is my understanding that Thomas Pitre was an employee of JDSU from January, 2000 to June, 2003. Mr. Pitre is no longe r employed by JDSU. 9. During the period of his employment, it is my understanding that Mr. Pitre worked in the Supply Chain Management Department. for one of JDSU's groups, the Fibreoptics Product Group ("FPG". His role was to take forecasts from the sale s group and product line managers and determine how much FPG could actuall y manufacture in light of labour, supply, and other capacity constraints. Mr. Pitre was not a director or officer of JDSU. 10. On or about August 18, 2000, the plaintiffs allege that Mr. Pitre caused an email to be sent from his JDSU email account to other employees. of JDSU. The plaintiffs have attached significant importance to this email in their class action. Attached as Exhibit "D" is a copy of Mr. Pitre's e-mail dated August 18, 2000. 11. On December 20, 2005, the Applicant filed a motion with the United States District Court, Northern District of California, Oakland Division for issuance of a lette r rogatory to the Superior Court of Justice of Ontario to obtain discovery from Thomas Pitre. 12. JDSU filed a Statement of Non-Opposition under United States Law. It has always been the position of JDSU that it is entitled to actively participate in any examination of Mr. Pitre, if any were ordered. Attached as Exhibit "E" is a copy of JDSU's Statement of Non-Opposition dated January 3, 2006. 13.On January 10, 2006, the Applicant filed a Reply in Further Support of its Motion for a Letter Rogatory. Attached as Exhibit "F" is a copy of CRPTF's Reply. 14. On January 18, 2006, United States Magistrate Judge Elizabeth D. Laporte granted the motion and issued a letter rogatory. In her Order, Judge Laporte underlined th e 3
UUUU0U ` } parties' submissions to make additional prospective orders regarding the procedure and scope of the discovery in Canada. She deferred those questions to be determined by the Canadian court, including the.issue of the scope of the discovery. Attached as Exhibit "G" is a copy of the January 18, 2006 Order. 15.On or about March 30, 2006, the Applicant filed a Notice of Application with the Court seeking an order enforcing the letter rogatory issued on January 18, 2006. 16.The Applicant has named Thomas Pitre as the only respondent to this Application even though JDSU may be affected by any Order of the Court in this Application, which may include allowing Mr. Pitre's examination for discovery. 17'. JDSU has a real and legitimate interest in the subject matter of the Application before the Court as the main defendant in the class action commenced by th e Applicant in California. Any evidence sought from Mr. Pitre (if relevant may affect JDSU's position and interest in the U.S. action. 18. If JDSU is not added as a respondent to this Application, it will not be able to make submissions regarding the appropriateness (if any of the discovery; the scope of the discovery and could be limited in its ability to participate in such a discovery. This will adversely affect its ability to defend itself in the U.S. action, 19.The Applicant is requesting that the Court enforce the letter rogatory to examine Thomas Pitre for discovery. As a former JDSU employee, Mr. Pitre would only have a general understanding of the litigation. Mr. Pitre has had no involvement with the action since it was commenced in 2002. As a result, it is my belief that Mr. Pitre would have no accurate knowledge of the following facts : t a. The status of the litigation in California ; b. What witnesses have already been deposed by the Plaintiffs ; c. The status of documentary discovery ; 4
000009 91 d. Whether there are other witnesses who are available to be deposed who could provide the parties with similar testimony ; or e. The relevance, if any, of examining him for discovery. 20.The relevance and the scope of any discovery of Mr. Pitre is st il l at issue, as set ou t in Judge Laporte's Order. JDSU would be able to provide the Ontario Court with a different perspective than Mr. Pitre or the Applicant with respect to these facts. 21. Should an examination of Mr. Pitre proceed, he could be asked to give undertaking s to produce documents that are in the possession of JDSU. These documents ma y not be relevant to the issues in the U.S. action. It is my understanding that Judge Laporte has been appointed. to hear motions and issue rulings on discovery including relevance. Attached as Exhibit "H" is the Order appointing a Magistrate Judge and as Exhibit "I", the docket entry assigning Magistrate Judge Laporte. 22. Furthermore, as a defendant in an ongoing action, JDSU's legal and legitimate commercial interest may be adversely affected by any ruling by this Court wit h respect to the Application. 23. This affidavit is sworn - in support of the motion brought by JDS Uniphase for an Order joining it or adding it as a responding party to the Application to enforce a letter rogatory and for no other purpose. SWORN BEFORE ME at the City } of Milpitas, in the city of in the State of California on April! f 2006. } A #ary blic n e State o California DAVID VELLEQUETTE/ Oan 1 nin! 1 r Car~1r '~' 6Qiwo 5