Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 1 of 13 PageID #:
`15573
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`EXHIBIT C
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 2 of 13 PageID #:
`15574
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`WIRTGEN AMERICA, INC.
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`Plaintiff,
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`v.
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`CATERPILLAR INC.
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`Defendant.
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`C.A. No. 17-770-RGA
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`JURY TRIAL DEMANDED
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`PLAINTIFF WIRTGEN AMERICA, INC.’S INITIAL DISCLOSURES,
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1)
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`
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`Plaintiff Wirtgen America, Inc. (“Plaintiff” or “Wirtgen America”), by its undersigned
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`counsel, hereby submits the following initial disclosures (“Initial Disclosures”) to Defendant
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`Caterpillar Inc. (“Defendant”), pursuant to Federal Rule of Civil Procedure (each, a “Rule”)
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`26(a)(1), and in accordance with this Court’s Scheduling Order. See D.I. 28.
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`These Initial Disclosures are based on information now reasonably available to Wirtgen
`
`America and represent Wirtgen America’s good-faith effort to identify information that it
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`reasonably believes to be required pursuant to Rule 26(a)(1) and this Court’s Scheduling Order.
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`See D.I. 28. Wirtgen America’s investigation is ongoing, and Wirtgen America expressly reserves
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`the right to modify, amend, supplement, and/or correct the information provided in these Initial
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`Disclosures as information becomes reasonably available. By making these Initial Disclosures,
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`Wirtgen America does not represent or warrant that it is identifying every document, item of
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`electronically stored information, tangible thing, or witness it may use to support its claims and
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`defenses in this civil action.
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`Wirtgen America also expressly reserves the right to rely upon additional information as it
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`1
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 3 of 13 PageID #:
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`becomes reasonably available through discovery or otherwise, pursuant to Rule 26(e). In addition,
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`Wirtgen America expressly reserves the right to call any witness or present any document, item of
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`electronically stored information, or tangible thing during discovery, any pre-trial proceeding, or
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`at trial that is identified through further investigation or discovery that may have information
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`relevant to the claims and defenses asserted in this civil action.
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`These Initial Disclosures are not intended, nor should they be construed, as a waiver of: (i)
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`any objection to or protection from the production, use, or admission into evidence of any
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`document, information, or thing that Wirtgen America may be legally entitled to assert during
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`discovery, any pre-trial proceedings, or any trial in this civil action; (ii) any objection to any other
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`discovery involving or relating to the subject matter of these Initial Disclosures; (iii) the attorney-
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`client privilege, the attorney work-product doctrine, or any other applicable privilege or immunity;
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`or (iv) the right to designate as confidential any and all information and materials worthy of such
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`designation in accordance with the Protective Order upon entry. Any inadvertent or unintentional
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`disclosure of discovery subject to confidentiality protection under the Protective Order upon entry,
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`or any inadvertent or unintentional disclosure of discovery subject to the attorney-client privilege,
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`the attorney work-product doctrine, or any other applicable privilege or immunity, shall not
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`constitute a waiver of any such protection or privilege.
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`
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`All the Initial Disclosures set forth below are made subject to the above objections and
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`qualifications.
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`1. Individuals Likely to Have Discoverable Information Along with Subjects of that
`Information
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`Pursuant to Rule 26(a)(1)(A)(i), and based on Wirtgen America’s investigation to date,
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`
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`Wirtgen America believes that one or more of the individuals identified below are likely to have
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`discoverable information that Wirtgen America may use to support its claims or defenses, other
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`2
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 4 of 13 PageID #:
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`than individuals used solely for impeachment. Wirtgen America expressly reserves the right to
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`identify and to call additional individuals as witnesses if, during the course of discovery and
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`investigation relating to this case, Wirtgen America reasonably learns that such additional persons
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`have relevant knowledge to this civil action. Subject to the foregoing, Wirtgen America identifies
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`the following individuals who are likely to have discoverable information that Wirtgen America
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`may use to support its claims or defenses:
`
`Individual (Name)
`
`Jim McEvoy
`* Contact through
`counsel
`
`Brad McKinney
`* Contact through
`counsel
`
`Allen Parton
`* Contact through
`counsel
`
`Jeff Wiley
`* Contact through
`counsel
`
`Address and
`Telephone No.†
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`
`Brodie Hutchins
`* Contact through
`counsel
`
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`6030 Dana Way
`Sandy Draper
`Antioch, TN 37013
`* Contact through
`U.S.A.
`counsel
`(615) 501-0600
`
`† The address and telephone numbers provided are those last known to Wirtgen America. For individuals located with
`corporate entities, the corporate headquarters (or other corporate offices) have been provided in circumstances where
`the particular business address of the individual is presently unknown.
`
`Connection to Case and Subject Matter of
`Discoverable Information
`President and Chief Executive Officer (CEO)
`for Wirtgen America, Inc., with knowledge of
`Wirtgen America’s (i) acquisition of the patents-
`in-suit and (ii) business activities.
`Chief Financial Officer (CFO) for Wirtgen
`America, Inc., with knowledge of Wirtgen
`America’s revenues and profits arising from the
`sale of technologies incorporating the patents-in-
`suit.
`Director of Human Resources for Wirtgen
`America, Inc., with knowledge of Wirtgen
`America’s internal protocols as it relates to
`employment and contracting, and the operations
`associated therewith.
`Senior Vice President (SVP) of Sales for
`Wirtgen America, Inc., with knowledge of
`Wirtgen America’s sale of technologies
`incorporating the patents-in-suit, and the
`operations associated therewith.
`Vice President (VP) of Distribution
`Development for Wirtgen America, Inc., with
`knowledge of Wirtgen America’s distribution
`network for technologies incorporating the
`patents-in-suit.
`Director of Inside Sales Operations for Wirtgen
`America, Inc., with knowledge of Wirtgen
`America’s sales department and the operations
`associated therewith.
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`3
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 5 of 13 PageID #:
`15577
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`Jan Schmidt
`* Contact through
`counsel
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`Ed Asbury
`* Contact through
`counsel
`Eric S. Engelmann
`
`Terry Healy
`
`Nathan Just
`
`David Peterson
`
`Conwell K. Rife,
`Jr.
`
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`(615) 501-0600
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`Currently Unknown
`
`Vice President (VP) of Product Support for
`Wirtgen America, Inc., with knowledge of
`Wirtgen America’s services directed to
`customer- and product-related support.
`Information Technology Manager for Wirtgen
`America, Inc. with knowledge of Wirtgen
`America’s information-technology and data-
`retention practices.
`Engineering Supervisor for Caterpillar Inc. and
`named
`inventor on patents
`and patent
`applications directed
`to
`road-construction
`machines (and components therein), assigned to
`Caterpillar Inc., Caterpillar Paving Products Inc.,
`or Caterpillar Trimble Control Technologies
`LLC, including U.S. Patent No. 9,371,618 (the
`“’618 Patent”), with knowledge of Caterpillar’s
`development of road-construction machines.
`Former Technical Manager for Caterpillar Inc.
`with knowledge of Caterpillar’s development of
`road-construction machines
`infringing upon
`Wirtgen America’s patents-in-suit.
`Marketing Manager for Caterpillar Inc. with
`knowledge of Caterpillar
`Inc.’s marketing
`practices as it relates to product development,
`customer interfacing, and other advertising,
`marketing, and promotional practices related to
`road-construction machines.
`Market Professional of Americas North for
`Caterpillar Inc. with knowledge of Caterpillar’s
`marketing, advertising, promotion, offers for
`sale, and/or
`sales of Caterpillar’s
`road-
`construction machines, especially road-milling
`machines and reclaimers.
`Currently Unknown Named
`inventor on patents and patent
`applications directed
`to
`road-construction
`machines (and components therein), assigned to
`Caterpillar Trimble Control Technologies LLC
`or Caterpillar Paving Products
`Inc., with
`knowledge of Caterpillar’s
`infringement of
`Wirtgen America’s patents-in-suit.
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`4
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 6 of 13 PageID #:
`15578
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`Dario Sansone
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`Kevin Adams
`
`9401 85th Ave. N.
`Brooklyn Park,
`MN 55445
`U.S.A.
`
`Paul Clark
`
`Currently Unknown
`
`A. J. Lee
`
`Currently Unknown
`
`Paul Koenen
`
`William Lindholm
`
`Nathan Mashek
`
`Jim Domanus
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`Engineering Manager for Caterpillar Inc. and
`named
`inventor on patents
`and patent
`applications directed
`to
`road-construction
`machines (and components therein), assigned to
`Caterpillar Paving Products Inc., including U.S.
`Patent No. 7,523,995 (the “’995 Patent”), with
`knowledge of Caterpillar’s
`infringement of
`Wirtgen America’s patents-in-suit.
`Sales and Marketing Support Manager for
`Caterpillar Paving Products Inc. with knowledge
`of marketing, advertising, promotion, offers for
`sale, and/or
`sales of Caterpillar’s
`road-
`construction machines.
`Former General Manager of Global Paving for
`Caterpillar Inc. with knowledge of Caterpillar’s
`profits and
`losses as
`it relates
`to road-
`construction machines in Caterpillar’s asphalt
`product lines.
`Former Global Support Consultant and Market
`Segment Manager for Caterpillar Inc. with
`knowledge of product development and life-
`cycle management
`for Caterpillar’s
`road-
`construction machines, particularly road-milling
`machines.
`Senior Validation Engineer for Caterpillar Inc.
`with knowledge of Caterpillar’s research and
`development efforts as it relates to control
`systems in road-construction machines.
`Engineering Supervisor for Caterpillar Inc. with
`knowledge of costs associated with modules,
`assemblies, or parts for Caterpillar’s road-
`construction machines.
`Engineering Manager for Caterpillar Inc. and
`named
`inventor on patents
`and patent
`applications directed
`to
`road-construction
`machines (and components therein), assigned to
`Caterpillar Inc. or Caterpillar Paving Products
`Inc., with
`knowledge
`of Caterpillar’s
`development of road-construction machines.
`Engineering Supervisor for Caterpillar Inc. with
`knowledge of Caterpillar’s design development
`and
`implementation
`for
`road-construction
`machines.
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`5
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 7 of 13 PageID #:
`15579
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`Timothy
`O’Donnell
`
`Currently Unknown
`
`Kevin Klein
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`
`Joshua Bloomfield
`
`Mark Tarvin
`
`510 Lake Cook Rd.
`Suite 100
`Deerfield, IL 60015
`U.S.A.
`935 Stewart Dr.
`Sunnyvale, CA
`94085
`U.S.A.
`
`Former Team Lead of Automation and
`Autonomy and Former Team Lead of Software
`Systems for Caterpillar Inc., and named inventor
`on patents and patent applications directed to
`road-construction machines (and components
`therein), assigned
`to Caterpillar
`Inc. or
`Caterpillar Paving Products Inc., with knowledge
`of Caterpillar’s
`development
`of
`road-
`construction machines.
`Manager of Litigation Technical Support for
`Caterpillar Inc. with knowledge of Caterpillar’s
`location, organization, and assembly of trial
`exhibits, document collection, and other
`technical assistance of Caterpillar’s legal team.
`General Manager of Outbound Logistics for
`Caterpillar Inc. with knowledge of Caterpillar’s
`importation
`and
`exportation practices
`in
`connection with road-construction machines.
`Senior Engineering Project Team Leader for
`Caterpillar Trimble Control Technologies LLC
`and named inventor on patents and patent
`applications directed
`to
`road-construction
`machines (and components therein), assigned to
`Caterpillar Paving Products Inc. or Caterpillar
`Trimble Control Technologies LLC, with
`knowledge of Caterpillar’s development of road-
`construction machines.
`Currently Unknown Named inventor with knowledge of the ’995
`Patent, as well as Caterpillar’s technologies
`incorporating the foregoing.
`Currently Unknown Named inventor with knowledge of the ’995
`Patent, as well as Caterpillar’s technologies
`incorporating the foregoing.
`Gregory H. Dubay Currently Unknown Named inventor with knowledge of the ’995
`Patent, as well as Caterpillar’s technologies
`incorporating the foregoing.
`James A. Aardema Currently Unknown Named inventor with knowledge of U.S. Patent
`No. 9,975,538, as well as Caterpillar’s
`technologies incorporating the foregoing.
`Currently Unknown Named inventor with knowledge of the ’618
`Patent, as well as Caterpillar’s technologies
`incorporating the foregoing.
`
`Federico B. Rio
`
`Dean R. Potts
`
`Daniel H. Killion
`
`
`*Contact through counsel for Plaintiff Wirtgen America, Inc.: William Sekyi, Patterson Intellectual
`Property Law, P.C., Roundabout Plaza, 1600 Division Street, Suite 500, Nashville, Tennessee
`37203, Tel. (615) 242-2400.
`
`6
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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 8 of 13 PageID #:
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`2. Documents, Electronically Stored Information, and Tangible Things in the Possession,
`Custody, or Control of Wirtgen America
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`Pursuant to Rule 26(a)(1)(A)(ii), and based upon its investigation to date, Wirtgen America
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`
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`identifies the following categories of documents, electronically stored information, and tangible
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`things in Wirtgen America’s possession, custody, or control, that Wirtgen America may use to
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`support its claims or defenses:
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`i. U.S. Patent Nos. 7,828,309 (“the ’309 patent”), 8,118,316 (“the ’316 patent”),
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`7,530,641 (“the ’641 patent”), 8,113,592 (“the ’592 patent”), 9,010,871 (“the ’871
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`patent”), 9,656,530 (“the ’530 patent”), 7,946,788 (“the ’788 patent”), 8,511,932 (“the
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`’932 patent”), 8,690,474 (“the ’474 patent”), RE48,268 (“the ’268 patent”), 8,424,972
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`(“the ’972 patent”), 9,879,390 (“the ’390 patent”), and 9,879,391 (“the ’391 patent”)
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`(collectively, the “Asserted Patents”);
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`ii.
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`File histories for the Asserted Patents, including the file histories of inter partes review
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`(IPR) proceedings for the applicable Asserted Patents;
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`iii. Documents showing ownership of the Asserted Patents;
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`iv. Documents demonstrating and/or describing the functionality of the technology,
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`products, or services underlying, embodying, or embracing any claim of the Asserted
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`Patents (collectively, the “Patented Technology”);
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`v. Documents, photographs, images, videos, and/or things showing Defendant’s
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`infringement of the Asserted Patents, including Defendant’s unauthorized use of the
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`Patented Technology in Defendant’s road-construction machines, such as road-milling
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`machines, recyclers, or stabilizers, as well as other cold-milling technology;
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`vi. Documents showing Defendant’s knowledge and willful infringement of the Asserted
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`Patents;
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`7
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`vii. Documents constituting, referring, or relating to the sales, pricing, market share, profits,
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`profit margins, sales projections, and market studies associated with Wirtgen’s road-
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`construction machines comprising the Patented Technology;
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`viii. Documents constituting, referring, or relating to damages, costs, and expenses arising
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`from Defendants’ infringement of the Asserted Patents, including (without limitation)
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`loss of revenue, loss of profits, loss of market share, price erosion, loss of goodwill,
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`damage to reputation, adverse impact on downstream-, ecosystem-, or network-related
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`sales or business opportunities, or other harms; and
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`ix. Documents, electronically stored information, or other tangible things produced by
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`Defendant or any other parties in the course of this civil action and in related
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`proceedings, including In the Matter of Certain Road Construction Machines and
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`Components Thereof, Investigation No. 337-TA-1088 (Int’l Trade Comm’n) (the
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`“1088 Investigation”), and In the Matter of Certain Road Milling Machines and
`
`Components Thereof, Investigation No. 337-TA-1067 (Int’l Trade Comm’n) (the
`
`“1067 Investigation”).
`
`These documents, electronically stored information, and/or tangible things are located or
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`available in one or more of Wirtgen America’s corporate offices in the United States, the
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`possession of Wirtgen America’s counsel, the public domain, the possession of third-party
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`individuals or entities who Wirtgen America may subpoena, and/or are in Defendant’s possession.
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`Wirtgen America shall conduct additional searches for discoverable documents, electronically
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`stored information, and/or tangible things, should the need for supplementary information arise
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`and a proper request be made in a timely manner. Wirtgen America reserves the right to amend or
`
`8
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`15582
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`supplement its disclosures as Wirtgen America’s investigation continues, the case progresses, and
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`discovery is taken.
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`3. Computation of Damages Claimed by Wirtgen America
`
`
`Pursuant to Rule 26(a)(1)(A)(iii), and based upon its investigation to date, Wirtgen
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`America seeks all remedies to which it is entitled under federal law, pursuant to 35 U.S.C. §§ 283-
`
`285, arising from Defendant’s patent infringement. Pursuant to 35 U.S.C. § 283, Wirtgen America
`
`seeks equitable relief arising from Defendant’s patent infringement, including at least a permanent
`
`injunction, as well as any other legal or equitable relief that the Court deems just and proper.
`
`Pursuant to 35 U.S.C. § 284, Wirtgen America seeks damages in an amount adequate to
`
`compensate for the patent infringement, which includes, but is not limited to, lost sales and/or lost
`
`profits, or at least a reasonable royalty for the use of Wirtgen America’s patented inventions,
`
`together with interest and costs fixed by the Court. Moreover, Wirtgen America seeks an
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`accounting of all Defendant’s infringing sales and revenues. In addition, Wirtgen America seeks
`
`damages up to three times the amount to be found, or to be assessed, by the Court with respect to
`
`Defendant’s infringement, based at least in part on Defendant’s willful infringement. Also,
`
`Wirtgen America seeks prejudgment interest. Wirtgen America seeks an award of attorneys’ fees
`
`and expenses under 35 U.S.C. § 285. Such costs, fees, and expenses cannot be computed at the
`
`present time and depend on a variety of factors such as the length and intensity of the litigation
`
`and the positions that Defendant takes in this civil action. Wirtgen America’s computation of its
`
`damages may be the subject of expert discovery in accordance with Rule 26(a)(2). Wirtgen
`
`America reserves the right to rely upon the opinions of qualified experts regarding any claim for
`
`damages, costs, expenses, or attorneys’ fees.
`
`9
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`

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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 11 of 13 PageID #:
`15583
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`At this time, Wirtgen America is unable to fully compute its damages, costs, expenses, and
`
`attorneys’ fees arising from Defendant’s conduct because it has not yet obtained discovery from
`
`Defendant, nor has Wirtgen America obtained an expert opinion. Wirtgen America will provide
`
`computations of the damages, costs, expenses, and attorneys’ fees at an appropriate time. And,
`
`since much of the information necessary to make damages calculations is in the possession of
`
`Defendant, Wirtgen America reserves its right to identify additional documents as this matter
`
`proceeds. Moreover, Defendant’s patent infringement is ongoing and the amount of damages to
`
`which Wirtgen America is entitled continues to increase.
`
`
`4. Insurance Agreement
`
`
`Pursuant to Rule 26(a)(1)(A)(iv), and based upon its investigation to date, Wirtgen
`
`America is not aware of any insurance agreements under which any individual or entity carrying
`
`on an insurance business may be liable to satisfy part or all of a judgment entered in this action or
`
`to indemnify or reimburse any party for payments made to satisfy a judgment.
`
`
`
`10
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`

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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 12 of 13 PageID #:
`15584
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`
`
`
`
`YOUNG CONAWAY STARGATT & TAYLOR, LLP
`
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Pilar G. Kraman (No. 5199)
`Rodney Square
`1000 North King Street
`Wilmington, Delaware 19801
`(302) 571-6600
`apoff@ycst.com
`pkraman@ycst.com
`
`Attorneys for Plaintiff Wirtgen America, Inc.
`
`Dated: October 21, 2021
`
`OF COUNSEL:
`
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`Scott M. Douglass
`Dominic A. Rota
`Mark A. Kilgore
`John F. Triggs
`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
`1600 Division Street, Suite 500
`Nashville, Tennessee 37203
`(615) 242-2400
`rdl@iplawgroup.com
`sro@iplawgroup.com
`wes@iplawgroup.com
`smd@iplawgroup.com
`dar@iplawgroup.com
`mak@iplawgroup.com
`jft@iplawgroup.com
`
`Daniel E. Yonan
`Paul A. Ainsworth
`R. Wilson Powers III
`Kyle E. Conklin
`Deirdre M. Wells
`Joseph H. Kim
`Richard J. Uberto Jr.
`Davin B. Guinn
`STERNE, KESSLER, GOLDSTEIN & FOX, PLLC
`1100 New York Ave., NW, Suite 600
`Washington, DC 20005
`(202) 371-2600
`dyonan@sternekessler.com
`painsworth@sternekessler.com
`tpowers@sternekessler.com
`kconklin@sternekessler.com
`josephk@sternekessler.com
`dwells@sternekessler.com
`ruberto@sternekessler.com
`dguinn@sternekessler.com
`
`
`11
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`

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`Case 1:17-cv-00770-JDW-MPT Document 189-3 Filed 04/14/23 Page 13 of 13 PageID #:
`15585
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`
`
`CERTIFICATE OF SERVICE
`
`I, Adam W. Poff, Esquire, hereby certify that on October 21, 2021, I caused the foregoing
`
`document to be served by email upon the following counsel:
`
`Bindu A. Palapura
`POTTER ANDERSON & CORROON, LLP
`1313 N. Market Street, 6th Floor
`Wilmington, Delaware 19801
`bpalapura@potteranderson.com
`
`James C. Yoon
`Ryan R. Smith
`WILSON SONSINI GOODRICH & ROSATI
`650 Page Mill Road
`Palo Alto, CA 94304
`jyoon@wsgr.com
`rsmith@wsgr.com
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`Lucy Yen
`WILSON SONSINI GOODRICH & ROSATI
`1301 Avenue of the Americas
`40th Floor
`New York, NY 10019
`lyen@wsgr.com
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`Attorneys for Defendant Caterpillar, Inc.
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`Dated: October 21, 2021
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`YOUNG CONAWAY STARGATT & TAYLOR, LLP
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`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Rodney Square
`1000 North King Street
`Wilmington, Delaware 19801
`(302) 571-6600
`apoff@ycst.com
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`Attorneys for Plaintiff Wirtgen America, Inc.
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