Case 1:17-cv-00770-JDW Document 238 Filed 10/19/23 Page 1 of 4 PageID #: 24292
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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-MPT
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`JURY TRIAL DEMANDED
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`FIRST SUPPLEMENTAL DECLARATION OF ASHA T. MEHROTRA
`IN SUPPORT OF JOINT MOTION TO SEAL
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`I, Asha T. Mehrotra, declare as follows:
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`1.
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`I am Assistant General Counsel of Defendant and Counterclaim-Plaintiff
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`Caterpillar Inc. (“Caterpillar”). I have personal knowledge of the facts stated herein, and if called
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`as a witness, I could and would testify competently thereto.
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`2.
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`I am submitting this supplemental declaration in support of the parties’ Joint
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`Motion to Seal (“Motion to Seal”) in connection with the parties’ oppositions to motions for
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`summary judgment and Daubert motions.
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`3.
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`Through this Motion to Seal, Caterpillar seeks leave to file under seal three types
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`of Caterpillar confidential information: (i) sensitive financial data; (ii) Caterpillar’s business plans
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`and strategy; and (iii) the identity, locations, and purchases of specific Caterpillar customers.
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`-1-
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`4.
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`First, 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 matter.1
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`Such sensitive financial information includes Caterpillar’s non-public sales data such as costs,
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`revenue, and profit. As I explained in my previous declaration, Caterpillar, like most businesses,
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`considers this type of sales data to be confidential because it represents the core of our business
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`operations and ultimately, our ability to generate profits. Public disclosure of otherwise
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`confidentially-maintained financial information would result in substantial economic and
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`competitive harm to Caterpillar, including by damaging our negotiating position with customers,
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`parts suppliers, and competitors in the industry. For example, if these counterparties had access
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`to Caterpillar’s financial information, they could use it to press Caterpillar during negotiations for
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`discounts and other favorable treatment. Specific to this case, if Wirtgen America gained access
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`to Caterpillar’s confidential financial data, it could leverage this information to gain an advantage
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`in reaching out to our customers, pricing its own products, and offering discounts to secure sales.
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`I understand that the Court has already granted Caterpillar’s prior motion to seal this type of
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`financial information.
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`5.
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`Second, Caterpillar seeks to seal certain documents containing its confidential
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`planning and strategy, including strategies on how to expand our business and gain market share
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`(Wirtgen America Exhibit D); compete with our competitors, including Wirtgen America (Wirtgen
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`America Exhibit D); and address intellectual property issues, including those at issue in this matter
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`(Wirtgen America Exhibit J). Other strategy documents include information regarding the
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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. that develops digital solutions. I explained
`in my October 5, 2023 declaration how information from CTCT is confidential, and I understand the Court
`previously granted Caterpillar’s motion to seal that information. This new passage in Dr. Seth’s Report is
`the same type of CTCT information the Court previously sealed.
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`planning and development of new products and builds, including discussion comparing these
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`products to our competitors (Wirtgen America Exhibits G, H, K, and P). These are some of
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`Caterpillar’s most sensitive documents because their disclosure would harm our competitive
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`standing, especially in relation to Wirtgen America, who is one of Caterpillar’s biggest
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`competitors. In particular, these documents would provide competitors with direct insight into our
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`competitive strategies and future plans. These competitors could then exploit this information to
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`gain an advantage over Caterpillar in the market. For example, they could adopt strategies that
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`would directly counteract our confidential business plans or modify their competing products to
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`better compete with our planned machines and updates.
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`6.
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`These specific strategy documents are also sensitive because they are related to this
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`lawsuit. For example, the document titled “Exhibit J” directly 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. If Wirtgen America saw this document, it
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`could use it to its competitive advantage in the market and during settlement negotiations.
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`Similarly, these strategy documents address Caterpillar’s plans regarding the Accused Products in
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`this case. 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 this lawsuit and
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`competing in the market.
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`7.
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`Finally, Caterpillar seeks to seal three spreadsheets that contain vast amounts of
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`internal and confidential information. In particular, they contain data from a set of surveys that
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`Caterpillar commissioned on our customers, which we called “Voice of the Customer” or
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`“VOC.” The survey data includes specific customer names, locations, dealers, and products
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`purchased. They also list the customers’ opinions about Caterpillar and its competitors’ products,
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`including features that they like and dislike. This data should be sealed because (i) it is the private
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`information of individuals and companies that are not involved in this lawsuit, and (ii) disclosing
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`it to the public would greatly harm Caterpillar competitively. Indeed, if this information were
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`public, our competitors, such as Wirtgen America, could use it to solicit Caterpillar’s customers
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`with respect to specific products or otherwise gain an advantage in the market. Our customers’
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`opinions regarding our products would be particularly useful for a competitor because they reveal
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`the features the customers like and dislike about the machines at issue. A competitor like
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`Wirtgen America could use this opinion data to capture market share and outright solicit our
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`customers by (i) identifying which customers are dissatisfied with Caterpillar’s products and (ii)
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`tailoring its sales pitches to those customers’ specific preferences. This information would also
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`be useful for competitors to guide future product development, at Caterpillar’s expense.
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`8.
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`These spreadsheets also contain other sensitive Caterpillar information, such as
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`product development timelines and goals. This information relates directly to Caterpillar’s
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`product planning and strategies, and should be protected for the same reasons I discussed above.
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`I declare under penalty of perjury under the laws of the United States of America that the
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`foregoing is true and correct.
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`Executed in Illinois on October 19, 2023.
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`By:
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`Asha T. Mehrotra
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