Contract analysis

I. Purpose and Background I am writing on behalf of Calderwood & Harkness LLP ("C&H") in connection with the obligations arising under the Stipulated Protective Order (Dkt. No. 47) entered by the Honorable Edward J. Torvelis on September 12, 2022 (the "Protective Order") in the above-referenced matter. As you are aware, the Court entered its Order of Dismissal with Prejudice on April 18, 2023, dismissing with prejudi

II. Categories of Protected Materials Received from Lumos As you will recall, the Protective Order established two tiers of protection for materials produced during discovery in this action: "Confidential" materials: Documents and information designated by the producing party as containing confidential business information, including but not limited to proprietary commercial data, business strategies, customer lists,

1. Technical Design Documents and Product Specifications. Lumos produced detailed technical design documents and product specifications for the LumosBridge™ 800G Optical Engine and the LumosEdge™ 400ZR+ Pluggable Transceiver products, which were the accused products in OWS's patent infringement claims. These materials were central to the claim construction and infringement analyses conducted in the litigation and inc

2. Engineering Schematics and Process Documents. Lumos produced engineering schematics and detailed process documentation related to several proprietary technologies and fabrication processes, including: (a) Lumos's segmented taper coupler design, which was at the heart of OWS's infringement contentions regarding U.S. Patent No. 10,XXX,XXX; (b) the step-graded SiGe buffer photodetector architecture employed in the ac

3. Revenue and Financial Data for Accused Products. Lumos produced detailed revenue, cost, and financial data for the LumosBridge™ and LumosEdge™ product lines, including the data underlying the approximately $148.6 million in combined accused product revenue reported by Lumos for calendar year 2022. This financial data was provided in connection with the damages phase of the litigation and included unit sales data,

4. Internal Lumos Communications. Lumos produced internal email communications, memoranda, presentations, and other business records responsive to OWS's First Set of Requests for Production of Documents (comprising 112 individual requests served on November 21, 2022). These productions included communications among Lumos engineering, product management, and executive personnel regarding the design, development, and c

5. Interrogatory Responses. Lumos served interrogatory responses containing contention-related technical detail regarding its non-infringement and invalidity positions, as well as financial detail relevant to damages. These responses contained detailed narrative descriptions of Lumos's proprietary technologies and were designated under the Protective Order.

6. Source Code and Firmware Documentation. Lumos produced source code and firmware documentation for the driver circuit architecture used in the accused products. Access to this source code was governed by the source code inspection protocol set forth in Paragraphs 18 through 24 of the Protective Order, which imposed additional restrictions on the manner of review and the individuals permitted to access this material

III. Obligations Under the Protective Order — Return or Destruction The Protective Order contains express post-termination provisions that govern the handling of protected materials following the conclusion of the litigation. Paragraph 15 of the Protective Order provides, in relevant part, that within sixty (60) days following the final conclusion of the litigation — including the exhaustion of all appeals or the exp

IV. Actions Required of Optiwave Semiconductor Corp. In order to ensure OWS's timely compliance with the Protective Order's post-termination provisions, we respectfully request that OWS undertake the following actions: A. Identification of Custodians and Repositories. OWS should promptly identify all custodians and repositories within the company that hold or may hold Lumos Confidential or Highly Confidential — Attor

V. Actions Being Taken by Calderwood & Harkness LLP In parallel with OWS's compliance efforts, Calderwood & Harkness is independently undertaking the following steps to ensure full compliance with the Protective Order:

1. Internal Repository Sweep. C&H is conducting a comprehensive sweep of all electronic repositories, litigation databases (including our Relativity document review platform and internal case management systems), email archives, and physical files maintained in connection with this matter to identify all Lumos Confidential and Highly Confidential — Attorneys' Eyes Only materials.

2. Engagement Team Coordination. The members of the C&H engagement team who handled Lumos protected materials during the litigation — Alan Ngo, Marcus Delgado, Omar Siddiqui, and Christy Bauer — are individually reviewing their electronic and physical files to identify and segregate all protected materials in their possession. Each team member will confirm in writing to the undersigned that he or she has completed th

3. Archival Copy Segregation. C&H is segregating the archival copy of pleadings, motion papers, expert reports, deposition transcripts, and other court filings that C&H is permitted to retain under the exception set forth in Paragraph 15(c) of the Protective Order. This archival set will be clearly marked as subject to the continuing confidentiality obligations of the Protective Order and will be maintained in a rest

4. Return or Destruction of Remaining Materials. Following completion of the sweep and segregation process, C&H will prepare all remaining Lumos protected materials for either consolidated return to Brannick Howell & Stein LLP or certified destruction, as appropriate. C&H intends to complete this process and transmit its certification to Brannick Howell & Stein LLP in advance of the June 17, 2023 deadline. In additio

VI. Continuing Confidentiality Obligations We take this opportunity to remind OWS, and all individuals at OWS who had access to Lumos protected materials during the litigation, that the confidentiality obligations imposed by the Stipulated Protective Order survive the termination of the litigation. The return or destruction of physical and electronic copies of protected materials does not extinguish the obligation to

VII. Certification Request To document OWS's compliance with the Protective Order's return-or-destroy provisions, we request that you, Sandra, execute and return to us the attached Certification of Compliance form (Enclosure 1). By executing the Certification, OWS will confirm the following: (a) That all Lumos Confidential and Highly Confidential — Attorneys' Eyes Only materials in OWS's possession, custody, or contr

VIII. Coordination with Opposing Counsel Calderwood & Harkness will communicate directly with Brannick Howell & Stein LLP — specifically, with Victoria Ashworth and Daniel Kowalski — to coordinate the logistics of the return and destruction process and the exchange of compliance certifications. This coordination will include confirming the preferred method and address for return of physical and electronic materials,

IX. Enclosed Materials For your reference and use, the following materials are enclosed with this letter: Enclosure 1: Certification of Compliance Form. This is the form certification that we request Sandra Ellison execute on behalf of OWS and return to C&H no later than June 10, 2023, as described in Section VII above. Enclosure 2: Summary Inventory of Categories of Lumos Protected Materials Distributed to OWS Perso