Case 1:17-cv-00770-JDW-MPT Document 189-4 Filed 04/14/23 Page 1 of 13 PageID #:
`15586
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`EXHIBIT D
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`Case 1:17-cv-00770-JDW-MPT Document 189-4 Filed 04/14/23 Page 2 of 13 PageID #:
`15587
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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-JDW
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`JURY TRIAL DEMANDED
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`PLAINTIFF WIRTGEN AMERICA, INC.’S AMENDED INITIAL DISCLOSURES,
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1)
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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
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`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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`

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`Wirtgen America also expressly reserves the right to rely upon additional information as it
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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:
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`(i) 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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` All the disclosures set forth below are made subject to the above objections and
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`qualifications.
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`1.
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`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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`Wirtgen America believes that one or more of the individuals identified below are likely to have
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`2
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`discoverable information that Wirtgen America may use to support its claims or defenses, other
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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
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`persons have relevant knowledge to this civil action. Subject to the foregoing, Wirtgen America
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`identifies the following individuals who are likely to have discoverable information that Wirtgen
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`America may use to support its claims or defenses:
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`Individual (Name)
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`Address and
`Telephone No.1
`
`Connection to Case and Subject Matter of
`Discoverable Information
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`Jim McEvoy
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`* Contact through
`counsel
`
`Brad McKinney
`
`* Contact through
`counsel
`
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
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`(615) 501-0600
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`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
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`(615) 501-0600
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`President and Chief Executive Officer (CEO)
`for Wirtgen America, Inc., with knowledge of
`Wirtgen America’s (i) acquisition of the
`patentsin-suit and (ii) business activities.
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`Chief Financial Officer (CFO) for Wirtgen
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`America, Inc., with knowledge of Wirtgen
`America’s revenues and profits arising from the
`sale of technologies incorporating the patents-
`insuit.
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`Jeff Wiley
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`* Contact through
`counsel
`
`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`
`(615) 501-0600
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`Senior Vice President (SVP) of Sales for
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`Wirtgen America, Inc., with knowledge of
`Wirtgen America’s sale of technologies
`incorporating the patents-in-suit, and the
`operations associated therewith.
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`Brodie Hutchins
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`* Contact through
`counsel
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`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
`
`(615) 501-0600
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`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.
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`
`1 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.
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`3
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`Individual (Name)
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`Address and
`Telephone No.1
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`Connection to Case and Subject Matter of
`Discoverable Information
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`Sandy Draper
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`* Contact through
`counsel
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`Jan Schmidt
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`* Contact through
`counsel
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`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
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`(615) 501-0600
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`6030 Dana Way
`Antioch, TN 37013
`U.S.A.
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`(615) 501-0600
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`John Phillips
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`* Contact through
`counsel
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`13021 Jasmine Lane,
`Oklahoma City, OK
`73142
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`(405) 823-4614
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`Eric S. Engelmann 510 Lake Cook Rd.
`Suite 100
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`Deerfield, IL 60015
`U.S.A.
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`Nathan Just
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`510 Lake Cook Rd.
`Suite 100
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`Deerfield, IL 60015
`U.S.A.
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`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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`Vice President (VP) of Product Support for
`Wirtgen America, Inc., with knowledge of
`Wirtgen America’s services directed to
`customer- and product-related support.
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`Former employee of third-party CMI Corp.
`(“CMI”) with knowledge of CMI’s marketing,
`advertising, promotion, offers for sale, sales,
`and/or design and operation of CMI’s road
`construction machines, especially road-milling
`machines and slip form pavers.
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`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.
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`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.
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`Conwell K. Rife,
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`Jr.
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`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.
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`4
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`Individual (Name)
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`Address and
`Telephone No.1
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`Connection to Case and Subject Matter of
`Discoverable Information
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`Dario Sansone
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`510 Lake Cook Rd.
`Suite 100
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`Deerfield, IL 60015
`U.S.A.
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`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.
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`Paul Clark
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`Currently Unknown 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.
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`Nathan Mashek
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`510 Lake Cook Rd.
`Suite 100
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`Deerfield, IL 60015
`U.S.A.
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`Mark Tarvin
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`935 Stewart Dr.
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`Sunnyvale, CA
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`94085
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`U.S.A.
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`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.
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`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.
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`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.
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`Daniel H. Killion
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`Currently Unknown Named inventor with knowledge of the ’618
`Patent, as well as Caterpillar’s technologies
`incorporating the foregoing.
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`5
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`Individual (Name)
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`Address and
`Telephone No.1
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`Connection to Case and Subject Matter of
`Discoverable Information
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`Craig Steffen
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`Currently Unknown Named inventor on patents and patent
`applications directed to road-construction
`machines (and components therein), assigned to
`Caterpillar Paving Products Inc., with
`knowledge of Caterpillar’s infringement of
`Wirtgen America’s patents-in-suit.
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`Ben Schafer
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`Currently Unknown
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`Jason Muir
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`Currently Unknown
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`Corey Hanback
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`Currently Unknown
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`David Falcione
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`Currently Unknown
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`Jason Wilson
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`Currently Unknown
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`Senior Engineer 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., with knowledge of
`Caterpillar’s infringement of Wirtgen America’s
`patents-in-suit.
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`Lead Project Engineer 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., with
`knowledge of Caterpillar’s infringement of
`Wirtgen America’s patents-in-suit.
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`Regional Sales Manager at 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.
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`Engineer for Caterpillar Inc. with knowledge of
`Caterpillar’s infringement of Wirtgen America’s
`patents-in-suit.
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`Logistics Planning Analyst at 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.
`
`
`*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.
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`6
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`Wirtgen America reserves the right to rely on any fact witnesses deposed by Defendant at
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`least with respect to the subject matter of their testimony. Wirtgen America reserves the right to
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`rely on any fact witness identified in Defendant’s Initial Disclosures. Wirtgen America reserves
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`the right to disclose additional individuals whom Wirtgen America may use to support its claims
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`or defenses based on information learned during the course of this litigation. Wirtgen America also
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`reserves the right to rely on any sworn testimony from witnesses previously disclosed in related
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`proceedings, including In the Matter of Certain Road Construction Machines and Components
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`Thereof, Investigation No. 337-TA-1088 (Int’l Trade Comm’n) (the “1088 Investigation”), In the
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`Matter of Certain Road Milling Machines and Components Thereof, Investigation No. 337-TA-
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`1067 (Int’l Trade Comm’n) (the “1067 Investigation”), and the 1067 Investigation Inter Partes
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`Proceedings Under Part 177 before the U.S. Customs and Border Protection related to
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`administrative rulings CBP HQ H314355 and CBP HQ H324012 (the “177 Proceedings”).
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`2.
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`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
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`America identifies the following categories of documents, electronically stored information, and
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`tangible things in Wirtgen America’s possession, custody, or control, that Wirtgen America may
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`use to 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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`7
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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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`vii. Documents, photographs, images, videos, and/or things produced by Defendant, third
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`parties, or any other parties related to the validity of the Asserted Patents, including
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`prior art and prior art equipment cited by Defendant and the inspection of prior art
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`equipment cited by Defendant;
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`viii. 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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`ix. Documents constituting, referring, or relating to damages, costs, and expenses arising
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`from Defendant’s 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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`8
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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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`x. Documents, electronically stored information, or other tangible things produced by
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`Defendant, third parties, or any other parties in the course of this civil action and in
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`related proceedings, including the 1088 Investigation, the 1067 Investigation, and the
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`177 Proceedings.
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`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
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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
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`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.
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`§§ 283–285, arising from Defendant’s patent infringement. Pursuant to 35 U.S.C. § 283, Wirtgen
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`America seeks equitable relief arising from Defendant’s patent infringement, including at least a
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`permanent injunction, as well as any other legal or equitable relief that the Court deems just and
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`proper. Pursuant to 35 U.S.C. § 284, Wirtgen America seeks damages in an amount adequate to
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`compensate for the patent infringement, which includes, but is not limited to, lost sales and/or
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`lost profits, or at least a reasonable royalty for the use of Wirtgen America’s patented inventions,
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`9
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`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
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`damages up to three times the amount to be found, or to be assessed, by the Court with respect to
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`Defendant’s infringement, based at least in part on Defendant’s willful infringement. Also,
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`Wirtgen America seeks prejudgment interest. Wirtgen America seeks an award of attorneys’ fees
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`and expenses under 35 U.S.C. § 285. Such costs, fees, and expenses cannot be computed at the
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`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
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`damages may be the subject of expert discovery in accordance with Rule 26(a)(2). Wirtgen
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`America reserves the right to rely upon the opinions of qualified experts regarding any claim for
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`damages, costs, expenses, or attorneys’ fees.
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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
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`Defendant, nor has Wirtgen America obtained an expert opinion. Wirtgen America will provide
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`computations of the damages, costs, expenses, and attorneys’ fees at an appropriate time. And,
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`since much of the information necessary to make damages calculations is in the possession of
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`Defendant, Wirtgen America reserves its right to identify additional documents as this matter
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`proceeds. Moreover, Defendant’s patent infringement is ongoing and the amount of damages to
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`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
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`or to indemnify or reimburse any party for payments made to satisfy a judgment.
`
`
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`10
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`15597
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`YOUNG CONAWAY STARGATT & TAYLOR, LLP
`
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Rodney Square
`1000 North King Street
`Wilmington, Delaware 19801
`(302) 571-6600
`apoff@ycst.com
`
`
`Attorneys for Plaintiff Wirtgen America, Inc.
`
`Dated: February 16, 2023
`
`
`OF COUNSEL:
`
`
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`Scott M. Douglass
`Mark A. Kilgore
`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
`mak@iplawgroup.com
`
`Daniel E. Yonan
`Paul A. Ainsworth
`R. Wilson Powers III
`Kyle E. Conklin
`Deirdre M. Wells
`Joseph H. Kim
`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
`dwells@sternekessler.com
`josephk@sternekessler.com
`dguinn@sternekessler.com
`
`
`
`
`
`
`11
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`

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`Case 1:17-cv-00770-JDW-MPT Document 189-4 Filed 04/14/23 Page 13 of 13 PageID #:
`15598
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`CERTIFICATE OF SERVICE
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`I, Adam W. Poff, Esquire, hereby certify that on February 16, 2023, I caused the foregoing
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`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
`
`
`Lucy Yen
`WILSON SONSINI GOODRICH & ROSATI
`1301 Avenue of the Americas
`40th Floor
`New York, NY 10019
`lyen@wsgr.com
`
`Attorneys for Defendant Caterpillar, Inc.
`
`Dated: February 16, 2023
`
`
`
`
`
`
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`
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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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