Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 1 of 9 PageID #: 24283
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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
`OPPOSITIONS TO MOTIONS FOR SUMMARY JUDGEMENT AND DAUBERT
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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 Brief in Opposition to Caterpillar Inc.’s Motions to
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`Exclude Certain Expert Testimony and for Summary Judgment (the “Wirtgen Opposition
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`Brief”); and
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`(2)
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`Exhibits D, G, H, I, J, K, L, M, O, P, and Q to the Declaration of Joseph Kim in
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`Support of Wirtgen America, Inc.’s Brief in Opposition to Caterpillar Inc.’s Motions to Exclude
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`Certain Expert Testimony and for Summary Judgment (the “Wirtgen Opposition 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 Wirtgen Opposition Exhibits I, O, and P, which
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`Caterpillar moves to seal in their entirety. Caterpillar moves to seal the Confidential Documents
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 2 of 9 PageID #: 24284
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`because they contain highly confidential Caterpillar information, whose confidentiality must be
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`maintained to prevent serious and real harm to Caterpillar and its customers and partners. See
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`First Supplemental 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. & Prods. 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.” Goldstein v. Forbes (In re Cendant Corp.), 260 F.3d 183, 194 (3d Cir. 2001)
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`(citations and quotations omitted); see also Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir.
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`1988) (“Despite the presumption, courts may deny access to judicial records, for example, where
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`they are sources of 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 id. (citing
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`Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994)). The Court will apply a “good cause”
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`standard justifying sealing or redacting judicial records, requiring a “balancing process, in which
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`courts weigh the harm of disclosing information against the importance of disclosure to the
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`public.” Mosaid Techs. Inc. v. LSI Corp., 878 F. Supp. 2d 503, 507-08 (D. Del. 2012).
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`III.
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`ARGUMENT
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`2
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 3 of 9 PageID #: 24285
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`Good cause exists here to seal portions of the Confidential Documents, because they
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`contain the sensitive business information of Caterpillar, its partner (CTCT), and its customers,
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`public disclosure of which would harm Caterpillar and its customers in the highly competitive
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`market for road construction machinery. Mehrotra Decl. at ¶¶ 3-8. Further, the information
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`sought to be sealed does not need to be disclosed to the public to understand the filings at issue.
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`Courts in this district have previously found good cause to redact confidential information that
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`“could cause real and serious harm” if disclosed, and is “the sort of material that courts have
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`frequently redacted.” Mosaid Techs., 878 F. Supp. 2d at 510. On October 17, 2023, the Court
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`here granted the parties’ Joint Motion to Seal similar information. See D.I. 235.
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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 at 672 (citation omitted).
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`Here, Caterpillar seeks to redact from the Confidential Documents certain limited information of
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`the kind that are protectable, namely (1) sensitive, non-public financial data; (2) Caterpillar’s
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`business plans and strategy; and (3) the identity, locations, and purchases of specific Caterpillar
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`customers.
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`Financial Information (Wirtgen Opposition Exhibit Nos. L and M)
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`Caterpillar seeks to seal certain financial information referenced in an internal
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`presentation and one of the reports of Dr. Seth, Wirtgen America’s damages expert in this
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 4 of 9 PageID #: 24286
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`matter.1 Mehrotra Decl. at ¶ 4. This Court has already granted Caterpillar’s prior motion to seal
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`this type of financial information. D.I. 235. As in Caterpillar’s prior motion to seal, D.I. 225,
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`this sensitive financial information includes Caterpillar’s non-public sales data such as costs,
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`revenue, and profit. Id. Caterpillar, like most businesses, considers this type of sales data to be
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`confidential because it represents the core of its business operations and ultimately, its ability to
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`generate profits. Id. Public disclosure of otherwise confidentially-maintained financial
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`information would result in substantial economic and competitive harm to Caterpillar, including
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`by damaging its negotiating position with customers, parts suppliers, and competitors in the
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`industry. Id. For example, if these counterparties had access to Caterpillar’s financial
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`information, they could use it to press Caterpillar during negotiations for discounts and other
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`favorable treatment. Id. Specific to this case, if Wirtgen America gained access to Caterpillar’s
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`confidential financial data, it could leverage this information to gain an advantage in reaching
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`out to Caterpillar’s customers, pricing its own products, and offering discounts to secure sales.
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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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`1 The expert report at issue also contains one passage containing the confidential information
`of CTCT, which is a joint venture between Caterpillar and Trimble Inc.. Caterpillar’s prior
`Motion to Seal explained that similar technical information from CTCT is confidential, D.I. 225,
`and the Court previously granted Caterpillar’s motion to seal that information. D.I. 235 This
`new passage in Dr. Seth’s Report is the same type of proprietary technical information the Court
`previously sealed.
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`4
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 5 of 9 PageID #: 24287
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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 Wirtgen Opposition Exhibit
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`Nos. L and M, containing Caterpillar’s financial information. For the reasons outline above,
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`there is good cause to seal these narrow sections.
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`Business Plans and Strategy (Wirtgen Opposition Exhibit Nos. D, G, H, J, K and P)
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`Caterpillar also seeks to seal certain documents containing its confidential planning and
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`strategy, including strategies on how to expand its business and gain market share (Wirtgen
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`Opposition Exhibit D); compete with its competitors, including Wirtgen America (Wirtgen
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`Opposition Exhibit D); and address intellectual property issues, including those at issue in this
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`litigation (Wirtgen Opposition Exhibit J). Mehrotra Decl. at ¶ 5. Other strategy documents
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`include information regarding the planning and development of new products and builds,
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`including discussion comparing these products to competing products from Wirtgen America
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`and others (Wirtgen Opposition Exhibits G, H, K, and P). Id. These are some of Caterpillar’s
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`most sensitive documents because their disclosure would harm its competitive standing,
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`especially in relation to Wirtgen America, who is one of Caterpillar’s biggest competitors. Id.
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`In particular, these documents would provide competitors with direct insight into Caterpillar’s
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`competitive strategies and future plans. Id. These competitors could then exploit this
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`information to gain an advantage over Caterpillar in the market. Id. For example, they could
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`adopt strategies that would directly counteract Caterpillar’s confidential business plans or modify
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`their competing products to better compete with Caterpillar’s planned machines and updates. Id.
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 6 of 9 PageID #: 24288
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`These specific strategy documents are also sensitive because they are related to this
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`lawsuit. Mehrotra Decl. at ¶ 6. For example, Wirtgen Exhibit J includes Caterpillar’s internal
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`strategies to address patents in this lawsuit, including confidential cost information for design-
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`arounds in response to allegations of infringement. Id. If Wirtgen America saw this document,
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`it could use it to its competitive advantage in the market and during settlement negotiations. Id.
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`Similarly, these strategy documents address Caterpillar’s plans regarding the Accused Products
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`in this case. Id. If these documents were filed publicly, Wirtgen America could use Caterpillar’s
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`confidential information about the Accused Products to gain an advantage in the marketplace
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`since the Accused Products compete directly with Wirtgen America machines. Id.
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`Courts in this Circuit recognize that a party’s business plans and strategies should remain
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`confidential. Zuru Ltd. v. Telebrands Corp., 15-548 (CCC), 2016 WL 3566957, at *1 (D.N.J.
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`June 29, 2016) (granting motion to seal emails that revealed “confidential communications
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`relating to [Plaintiff’s] marketing activities, business strategy, and internal corporate decision-
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`making”); Jazz Pharms., Inc. v. Roxane Labs., Inc., No. 2:10-cv-06108-ES-JAD, 2017 WL
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`11633521, at *1, 3 (D.N.J. Feb. 23, 2017) (granting motion to seal materials “contain[ing]
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`information describing commercially sensitive, confidential and proprietary and business
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`matters, practices, and strategies” because “competitors would unjustly gain access to such
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`information… and these competitors would unjustly gain the ability to use that information to the
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`competitors’ advantage and [Defendant’s] loss”). Courts have also sealed confidential
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`documents regarding product development. Honeywell Int’l Inc. v. Nikon Corp., C.A. No. 04-
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`1337-JJF, 2010 WL 744535, at *3 (D. Del. Mar. 2, 2010) (denying motion to unseal “technical
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`and design information amounting to trade secrets, confidential research and business
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`information”); Genentech, Inc. v. Amgen, Inc., C.A. No. 17-1407-CFC, 2020 WL 9432700, at *5
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`6
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 7 of 9 PageID #: 24289
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`(D. Del. Sept. 2, 2020), report and recommendation adopted, 2020 WL 9432702 (D. Del. Oct. 1,
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`2020) (finding it appropriate to seal documents, including “trade secrets, proprietary scientific
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`research, highly sensitive manufacturing information … business intelligence, [and] regulatory
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`strategies” among other things). Wirtgen’s exhibits contain both confidential business plans and
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`strategies as well as confidential product development information, and the release of either type
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`of information would cause Caterpillar serious competitive harm.
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`Caterpillar has narrowly tailored its request to seal its business plans and strategies to the
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`highlighted portions of Wirtgen Opposition Exhibit Nos. D, G, H, J, K and P. Due to the
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`harm of disclosing Caterpillar’s business plans and strategies, good cause exists to seal the
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`highlighted portions of these exhibits.
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`Customer Information (Wirtgen Opposition Exhibit Nos. I, O, and Q)
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`Finally, Caterpillar seeks to seal three spreadsheets that contain vast amounts of internal
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`and confidential information. In particular, they contain data from a set of surveys that
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`Caterpillar commissioned on its customers, which it called “Voice of the Customer” or “VOC.”
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`Mehrotra Decl. at ¶ 7. The survey data includes specific customer names, locations, dealers, and
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`products purchased. Id. They also list (by customer) the customers’ opinions about Caterpillar
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`and its competitors’ products, including features that they like and dislike. Id. This data should
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`be sealed because (i) it is the private information of individuals and companies that are not
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`involved in this lawsuit, and (ii) disclosing it to the public would greatly harm Caterpillar
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`competitively. Id. Indeed, if this information were public, Caterpillar’s competitors, such as
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`Wirtgen America, could use it to solicit Caterpillar’s customers with respect to specific products
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`or otherwise gain an advantage in the market. Id. Caterpillar’s customers’ opinions regarding its
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`products would be particularly useful for a competitor because they reveal the features the
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 8 of 9 PageID #: 24290
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`customers like and dislike about the machines at issue. Id. A competitor like Wirtgen America
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`could use this opinion data to capture market share and outright solicit Caterpillar’s customers by
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`(i) identifying which customers are dissatisfied with Caterpillar’s products and (ii) tailoring its
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`sales pitches to those customers’ specific preferences. Id. This information would also be useful
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`for competitors to guide future product development, at Caterpillar’s expense. Id.
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`Courts in the circuit recognize the danger posed to a parties’ competitive standing if its
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`customer information is filed publicly. Saturn Wireless Consulting, LLC v. Aversa, No. 17-1637
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`(KM), 2018 WL 11458894, at *3 (D.N.J. Dec. 26, 2018) (sealing customer lists of an AT&T
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`solution provider was “warrant[ed] … to protect … competitive standing in the marketplace”);
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`Amgen Inc. v. Amneal Pharms. LLC, C.A. No. 16-853-MSG, 2021 WL 4843959, at *2 (D. Del.
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`Oct. 18, 2021) (granting motion to seal “highly confidential” customer data, including “the
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`names of customers that purchase the … product”). Indeed, in Saturn Wireless, the court
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`understood that failing to seal a party’s customer information would allow competitors to solicit
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`those customers: “general disclosure of these [customer] lists would put this information not only
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`in the hands of the other AT&T Solution Providers but also in the hands of any solution
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`providers, including those not partnered with AT&T. Any solution provider, which [Plaintiff]
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`may also be competing with, would be able to solicit the customers listed on [Plaintiff’s] list and
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`attempt to pry them not only from [Plaintiff], but the complete AT&T wireless network.” Saturn
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`Wireless, 2018 WL 11458894, at *3. Like in Saturn Wireless, disclosing Caterpillar’s customer
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`information would allow competitors like Wirtgen America to directly solicit Caterpillar’s
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`customers.
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`The spreadsheets Caterpillar seeks to seal also contain other sensitive Caterpillar
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`information, such as product development timelines and goals. Mehrotra Decl. at ¶ 8. This
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`Case 1:17-cv-00770-JDW Document 237 Filed 10/19/23 Page 9 of 9 PageID #: 24291
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`information relates directly to Caterpillar’s product planning and strategies and should be
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`protected for the same reasons discussed above. Id.
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`Accordingly, because they include confidential customer data, as well as other sensitive
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`information that would harm Caterpillar’s competitive standing if they were disclosed to the
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`public, there is good cause to seal Wirtgen Opposition Exhibit Nos. I, O, and Q in their
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`entirety.
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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,
`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 19, 2023
`11121877/11898.00005
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