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JDS Uniphase Corp. was fine with Wilson Sonsini Goodrich & Rosati defending its adversary in a trade secrets case. The San Jose, Calif., company also didn’t protest when startup Cierra Photonics Inc. had Wilson Sonsini file a cross-complaint against JDS in the same matter. But when discovery started, and Wilson Sonsini started probing JDS about antitrust issues, the company asked the court to give Wilson Sonsini the boot. The questions apparently hit too close to home because the firm was antitrust counsel for JDS on issues related to the company’s acquisition of a Wilson Sonsini client earlier that year. On Wednesday, JDS won its bid to disqualify Wilson Sonsini from acting as plaintiff’s counsel for Santa Rosa, Calif.-based Cierra in the suit that the company filed against a JDS subsidiary. “WSGR never informed JDS that it contemplated bringing a lawsuit against it on Cierra’s behalf,” Sonoma County, Calif., Superior Court Judge Raymond Giordano wrote. “WSGR’s simultaneous representation of JDS Uniphase and Cierra, as well as WSGR’s prosecution of antitrust and monopoly claims against JDS is a clear conflict of interest.” Wilson Sonsini is no stranger to potential conflicts. The firm is known to switch sides at the deal table when it comes to representing venture capitalists and entrepreneurs — but clients typically agree to this practice. When litigation is on the table, however, the issue becomes stickier. But clients often acquiesce to a waiver just the same, said James DiBoise, the Wilson Sonsini partner who is representing Cierra. JDS did. The company signed a waiver for Wilson Sonsini to represent Cierra when a JDS subsidiary leveled charges of trade secret misappropriation in Optical Coating Laboratory v. Cierra Photonics, 225419, which was filed in November 2000. Cierra was founded by key employees from Optical Coating. Wilson Sonsini can still defend Cierra in that suit, but the firm will have to pass along a breach of contract action aimed at the JDS subsidiary. Wilson Sonsini’s lawyer in the disqualification proceedings, Pamela Phillips, a Rogers, Joseph, O’Donnell & Phillips partner, said the move to disqualify Wilson was likely a strategic one given that it occurred so soon after discovery started. “They were perfectly willing to keep Wilson Sonsini in the process of trying to settle the case,” Phillips added, saying that if the goal were to remove Wilson entirely, JDS would have cut Wilson out of the process. The nature of the trade secret case also could have spurred JDS to remove Wilson Sonsini, she said. “In some ways, people stop thinking rationally and it becomes all-out war, even in matters that you shouldn’t be fighting about,” Phillips said. San Francisco’s Collette & Erickson is representing JDS and its subsidiary, but Collette partner William Farmer Jr. declined to comment, saying the litigation was still pending. In fighting its removal, Wilson Sonsini had argued the waiver JDS granted initially cleared a path for the firm to launch a counter-claim. DiBoise said he was pleased the judge validated the waiver he had secured at the outset — even if he ruled that it didn’t extend to later actions. “We entered into the case with an express waiver from JDS, and the court found in its ruling an express waiver had been given,” DiBoise said. “We just wanted to continue being able to defend our client.”

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