Case 1:17-cv-00770-JDW Document 225 Filed 10/05/23 Page 1 of 8 PageID #: 19230
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 17-770-JDW
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`JURY TRIAL DEMANDED
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`)))))))))
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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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`CATERPILLER INC.’S BRIEF IN SUPPORT OF JOINT MOTION TO SEAL
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`I.
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`INTRODUCTION
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`Defendant Caterpillar Inc. (“Caterpillar”) respectively requests that the Court seal highly
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`confidential information contained in:
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`(1) Wirtgen America, Inc.’s Opening Brief In Support Of Its Combined Motion For
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`Partial Summary Judgment And Motion To Exclude Inadmissible Expert Testimony (the
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`“Wirtgen Brief”);
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`(2)
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`The Statement of Undisputed Material Facts in Support of Plaintiff’s Motion to
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`Exclude Certain Expert Testimony and for Summary Judgment (the “Wirtgen Statement”);
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`(3)
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`Certain exhibits to the Statement of Undisputed Material Facts in Support of
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`Plaintiff’s Motion to Exclude Certain Expert Testimony and for Summary Judgment (the
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`“Wirtgen Statement Exhibits”);
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`(4)
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`Caterpillar Inc.’s Opening Brief in Support of Motions to Exclude Certain Expert
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`Testimony and for Summary Judgment (the “Caterpillar Brief”);
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`(5)
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`The Parties’ Joint Compiled Statement of Material Facts in Relation to
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`Caterpillar’s Motions for Summary Judgment (the “Caterpillar Statement”);
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`(6)
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`Certain exhibits to the Parties’ Joint Compiled Statement of Material Facts in
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`Relation to Caterpillar’s Motions for Summary Judgment (the “Caterpillar Statement Exhibits;”);
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`and
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`(7)
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`Certain exhibits to the Declaration of Lucy Yen in Support of Caterpillar Inc.’s
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`Opening Brief in Support of Motions to Exclude Certain Expert Testimony and for Summary
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`Judgment (the “Yen Decl. Exhibits”).
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`Collectively, the above-defined documents will be referred to as the “Confidential
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`Documents.”
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`* * * * * * * * * *
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`The portions of the Confidential Documents that Caterpillar moves to seal are highlighted
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`in yellow in the respective documents, except for Caterpillar Statement Ex. Nos. 59 and 60,
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`which Caterpillar moves to seal in their entirety. Caterpillar moves to seal the Confidential
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`Documents because they contain Caterpillar highly confidential information, whose
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`confidentiality must be maintained to prevent serious and real harm to Caterpillar and others.
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`See Declaration of Asha T. Mehrotra (“Mehrotra Decl.”).
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`II.
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`LEGAL STANDARD
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`While Third Circuit common law presumes a public right of access to judicial records, it
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`also protects business and financial information when access would cause economic harm,
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`including competitive harm. In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d
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`662, 672 (3d Cir. 2019). “Although the common law right to public access is a recognized and
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`venerated principle, courts have also recognized the accompanying principle that the right is not
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`absolute.” In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001) (citations and quotations
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`omitted); see also Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (“Despite the
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`Case 1:17-cv-00770-JDW Document 225 Filed 10/05/23 Page 3 of 8 PageID #: 19232
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`presumption, courts may deny access to judicial records, for example, where they are sources of
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`business information that might harm a litigant’s competitive standing.”).
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`This presumption is overcome where a movant shows “that the interest in secrecy
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`outweighs the presumption.” In re Avandia Mktg., 924 F.3d at 672 (quoting Bank of Am. Nat’l
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`Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). This showing
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`may be made by demonstrating that disclosure will work a clearly defined and serious injury to
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`the movant and that the material is the kind of information that courts will protect. See In re
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`Avandia Mktg., 924 F.3d at 672 (citing Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994)).
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`The Court will apply a “good cause” standard justifying sealing or redacting judicial records,
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`requiring a “balancing process, in which courts weigh the harm of disclosing information against
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`the importance of disclosure to the public.” Mosaid Techs. Inc. v. LSI Corp., 878 F. Supp. 2d
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`503, 507-08 (D. Del. 2012).
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`III.
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`ARGUMENT
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`Good cause exists here to seal portions of the Confidential Documents, because they
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`contain Caterpillar’s sensitive technical and business information, public disclosure of which
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`would harm Caterpillar in the highly competitive market road construction machinery. Mehrotra
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`Decl. at ¶¶ 5-7. Further, the information sought to be sealed does not need to be disclosed to the
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`public to understand the filings at issue. Courts in this district have previously found good cause
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`to redact confidential information that “could cause real and serious harm” if disclosed, and is
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`“the sort of material that courts have frequently redacted.” Mosaid Techs., 878 F. Supp. 2d at
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`510.
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`Although the public’s presumptive common law right of access to judicial records
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`attaches to materials filed in connection with a pretrial motion of a non-discovery nature, this
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`right is “not absolute” and may be overcome by a showing that the material sought to be sealed
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`“is the kind of information that courts will protect and will work a clearly defined and serious
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`injury to the party seeking closure.” In re Avandia Mktg., 924 F.3d 662, 673 (3d Cir. 2019)
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`(citation omitted). Here, Caterpillar seeks to redact from the Confidential Documents certain
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`limited information of the kind that are protectable, namely (1) excerpts and descriptions of
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`Caterpillar’s confidential source code; (2) confidential technical information developed as part of
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`a joint venture with Trimble, Inc. (Caterpillar Trimble Control Technology (“CTCT”)); (3)
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`sensitive, non-public financial data; and (4) information that was ordered redacted in the USITC
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`Proceeding Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067.
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`Mehrotra Decl. at ¶¶ 3-4; Miller Decl. at ¶¶ 2-7.1
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`Source Code
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`Caterpillar maintains its source code as confidential trade secrets, and it was only
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`produced in this case under the designation, “Highly Confidential – Attorney’s Eyes Only.”
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`Mehrotra Decl. at ¶ 5. Indeed, the parties in the matter recognized the highly confidential nature
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`of source code by providing additional safeguards on this information in their Stipulated
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`Amended Protective Order. D.I. 61 at Sec. C. Failing to seal Caterpillar’s source code would
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`greatly harm Caterpillar’s business interests and competitive standing by allowing competitors to
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`access and potentially copy this proprietary information. Mehrotra Decl. at ¶ 5; Eagle View
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`Techs., Inc. v. Xactware Sols., Inc., No. CV 15-7025 (RBK/JS), 2019 WL 13043768, at *2
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`(D.N.J. Jan. 11, 2019) (permitting redactions over information concerning “development of [the
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`parties’] software and products, source code, and business-related agreements,” the public
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`1 “Miller Decl. herein refers to the Declaration of Randal C. Miller in Support of Joint
`Motion to Seal.
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`disclosure of which could harm the parties “by way of competitive disadvantage in the
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`marketplace and injury to their business interests.”); see also Mextel, Inc. v. Air-Shields, Inc., No.
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`01-cv-7308, 2004 WL 614601, at *1 (E.D. Pa. Jan. 30, 2004) (ordering that “[a]ny excerpts from
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`the source code contained in any papers filed with the Court will be filed under seal”). This is
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`particularly true here, where Caterpillar is involved in litigation with its primary competitor,
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`Wirtgen, who could use Caterpillar’s confidential source code to Caterpillar’s detriment.
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`Caterpillar has narrowly tailored its request to seal its source code to the portions of
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`Caterpillar Statement Ex. No. 89 and Yen Decl. Ex. No. 19 that directly cite and specifically
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`describe Caterpillar’s code. Due to the harm of disclosing Caterpillar’s confidential source code,
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`good cause exists to seal the highlighted portions of Caterpillar Statement Ex. No. 89 and Yen
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`Decl. Ex. No. 19.
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`CTCT Documents
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`CTCT is a joint venture between Caterpillar and Trimble, Inc., which develops digital
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`solutions. Mehrotra Decl. at ¶ 6. CTCT worked with Caterpillar to develop software and source
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`code incorporated in Caterpillar’s machines. Id. In that regard, CTCT produced in this case
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`information regarding its technology, including technical schematics, charts, and specifications.
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`Id. For the same reasons as discussed regarding Caterpillar’s source code, given the
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`collaboration with Caterpillar and incorporation in Caterpillar’s software, competitors armed
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`with this confidential information could use it to copy the software and related features, thereby
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`harming Caterpillar’s competitive standing. Id.
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`Courts in this Circuit regularly seal confidential information regarding a party’s
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`proprietary technology. See Eagle View Techs, 2019 WL 13043768, at *2; Wyeth v. Abbott
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`Lab'ys, No. CIV.A. 08-0230-JAP, 2010 WL 3022215, at *1 (D.N.J. July 29, 2010) (sealing
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`“sensitive business and technical information which would reveal aspects of research and
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`development of [a party's] therapeutic compounds that is not known by the general public”);
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`Cordis Corp. v. Abbott Lab’ys, No. CV 07-2265 (JAP), 2009 WL 10728329, at *1 (D.N.J. Apr.
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`8, 2009) (sealing “confidential information that constitutes or discloses trade secrets or other
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`confidential research, development, manufacture, regulatory, financial, commercial, marketing,
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`or other business information”).
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`Accordingly, there is good cause to seal Caterpillar Statement Ex. Nos. 59-60 in their
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`entirety, as well as to seal narrowly tailored portions of the Caterpillar Statement at Facts 59,
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`81, 83, and 84; Wirtgen Statement Ex. No. 4; and Caterpillar Statement Ex. Nos. 13, 15, and
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`90, that reference CTCT information.
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`Financial Information
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`Caterpillar seeks to seal certain financial information referenced in some the reports of
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`the parties’ damages experts in this matter, including its non-public sales data such as costs,
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`revenue, and profit. Mehrotra Decl. at ¶ 6. Caterpillar, like most businesses, considers this type
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`of sales data to be confidential because it represents the core of its business operations and
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`ultimately, its ability to generate profits. Id. Public disclosure of otherwise confidentially-
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`maintained financial information would result in substantial economic and competitive harm to
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`Caterpillar, including by damaging its negotiating position with customers, parts suppliers, and
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`competitors in the industry. Id. For example, if these counterparties had access to Caterpillar’s
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`financial information, they could use it to press Caterpillar during negotiations for discounts and
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`other favorable treatment. Id. Specific to this case, if Wirtgen America gained access to
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`Caterpillar’s confidential financial data, it could leverage this information to gain an advantage
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`in reaching out to customers, pricing its own products, and offering discounts to secure sales. Id.
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`Courts have permitted sealing of “nonpublic business information, disclosure of which
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`will pose a risk of harm to [a party’s] competitive position in the marketplace. In particular, if
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`such information becomes public, competitors could develop strategies that undercut [a party’s]
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`business.” Boehringer Ingelheim Pharma GMBH & Co. KG v. Mylan Pharms., Inc., No. CIV.
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`14-4727 NLH/KMW, 2015 WL 1816473, at *2 (D.N.J. Apr. 22, 2015) (permitting sealing of
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`information concerning financial data, including sales and revenue”); Cutsforth, Inc. v. Lemm
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`Liquidating Co., LLC, No. 17-CV-1025, 2020 WL 772442, at *1 (W.D. Pa. Feb. 18, 2020)
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`(granting motion to seal “specific data related to product pricing” because “such information is
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`not disclosed to the public…and disclosure [] would materially harm [p]laintiff’s negotiating
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`position in the marketplace”).
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`Caterpillar has highlighted narrowly tailored portions of Yen Decl. Ex. Nos. 1 and 5, ,
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`containing Caterpillar’s financial information. For the reasons outlined above, there is good
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`cause to seal these narrow sections.
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`ITC Documents
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`Finally, certain exhibits to the parties’ motions are covered by the protective order in
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`USITC Inv. No. 1067 and have already been ordered redacted by the USITC or US Customs and
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`Border Protection. Miller Decl. at ¶¶ 2-7. Specifically, Wirtgen Statement Ex. No. 11 contains
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`excerpts of the hearing transcript from Inv. No. 1067, which took place in closed session;2
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`Wirtgen Statement Ex. No. 12 contains excerpts of the investigation’s Final Initial
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`Determination; and Caterpillar Statement Ex. Nos. 39-42 are letters between Caterpillar and
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`US Customs and Border Protection regarding the investigation. Id. Caterpillar simply seeks to
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`2 The Wirtgen Statement also contains quotations from Wirtgen Statement Ex. No. 11, which
`should also be sealed.
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`Case 1:17-cv-00770-JDW Document 225 Filed 10/05/23 Page 8 of 8 PageID #: 19237
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`maintain the redactions that have already been duly applied to these document by administrative
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`and regulatory agencies. Id. Accordingly, for the hearing transcript Caterpillar highlighted the
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`portions that represent closed sessions, and for the Initial Determination and CBP letters,
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`Caterpillar highlighted the portions that the USITC and CBP have already redacted from the
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`documents’ respective public versions. Id. Because these documents are protected by the
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`Protective Order in USITC Inv. No. 1067 and already contain narrowly tailored redactions, there
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`is good cause to maintain these pre-existing redactions.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Caterpillar respectfully requests the Court grant the Joint
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`Motion to Seal with respect to Caterpillar’s highly confidential information.
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`Respectfully submitted,
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`POTTER ANDERSON & CORROON LLP
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`By: /s/ Bindu A. Palapura
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`bpalapura@potteranderson.com
`abrown@potteranderson.com
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`Attorneys for Defendant Caterpillar Inc.
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`OF COUNSEL:
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`James C. Yoon
`Christopher D. Mays
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 493-9300
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`Ryan R. Smith
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Telephone: (206) 883-2500
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`Lucy Yen
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019
`Telephone: (212) 999-5800
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`Dated: October 5, 2023
`11097067/11898.00005
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