Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 1 of 11 PageID #: 30338
`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 1 of 11 PagelD #: 30338
`
`EXHIBIT 2
`EXHIBIT 2
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 1 of 11 PagelD #: 30338
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`EXHIBIT 2
`EXHIBIT 2
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 2 of 11 PageID #: 30339
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 1
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`------------------------------------)
`WIRTGEN AMERICA, INC., )
` Plaintiff/Counter-Defendant )
`vs. ) Case No.
`CATERPILLAR, INC., ) 1:17-cv-00770-JDW
` Defendant/Counter-Plaintiff. )
`------------------------------------)
`
` CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
` Video Recorded Deposition of:
` JAMES McEVOY
` Rule 30(b)(6) Designee of Wirtgen America, Inc.
` Taken on behalf of the Defendant/Counter-Plaintiff
` Friday, March 31, 2023
`
`Court Stenographer:
`Virginia Dodge, RDR, CRR, LCR
`
`______________________________________________________
` DIGITAL EVIDENCE GROUP
` 1730 M Street, NW, Suite 812
` Washington, D.C. 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
`
`202-232-0646
`
`
`
`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 3 of 11 PageID #: 30340
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`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 31
` A. These are -- I guess let me correct. They
`are individuals with engineering degrees. I believe
`that qualifies to be called an engineer.
` And they have different roles in management
`or sales.
` Q. Does Wirtgen America conduct any research and
`development?
` A. No.
` Q. Since you joined Wirtgen America in 2000, has
`the company conducted any research and development?
` A. I can think of -- when we were looking for
`designs for a couple of things that probably were
`patented, we may have had a couple different
`iterations.
` Q. Do you recall what those things were?
` A. I believe it was an insert, a paving hopper
`insert, that we received a patent for. That's the only
`one I can recall.
` Q. And do you recall what that insert would go
`into?
` A. Yes. An asphalt paver.
` Q. So this would be a -- and would this be an
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`202-232-0646
`
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 4 of 11 PageID #: 30341
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 32
`
`asphalt paver from Vögele?
` A. Yes.
` Q. And to your knowledge, did Wirtgen America
`obtain that patent?
` A. I believe so.
` Q. Has Wirtgen America ever done any engineering
`work with respect to milling machines?
` A. Not that I'm aware of.
` Q. Has Wirtgen America done any engineering work
`with respect to slipform pavers?
` A. Not that I'm aware of.
` Q. And does Wirtgen America sell a product
`called a rotary mixer?
` A. Not a term we use.
` Q. Is there a term that you use for those types
`of products?
` A. Recycler.
` Q. And has Wirtgen America ever done engineering
`work for a recycler?
` A. Not that I'm aware of.
` Q. And generally, would you say that competition
`between companies is a good thing?
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`202-232-0646
`
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 5 of 11 PageID #: 30342
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`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 77
`assigning patents to Wirtgen America from Wirtgen GmbH?
` A. Yes.
` Q. And so why don't we take a look at Exhibit --
`in the lower right-hand corner, it says Exhibit 15, but
`then it does -- the cover page says Exhibit 7, I
`believe.
` So if you could go to that document,
`Exhibit 15.
` Do you -- and do you see here if we go to --
`I think it's the page that ends in 0225722.
` A. Yes.
` Q. Okay. And then it -- here.
` Do you see that this is an assignment from
`Wirtgen GmbH to Wirtgen America?
` A. Yes.
` Q. And then if you go down, kind of near the
`top, it says, "Title of Application: Scraper device,
`as well as construction machine"?
` A. Yes.
` Q. And do you have a recollection of why this --
`the scraper device patent was assigned from Wirtgen
`GmbH to Wirtgen America?
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 6 of 11 PageID #: 30343
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`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 78
` A. Patents were assigned to Wirtgen America on
`advice of counsel.
` Q. Okay. And do you have any other -- aside
`from discussions or advice from counsel, do you have
`any other information on that assignment?
` A. No.
` Q. And aside from discussions with counsel, do
`you have an understanding of how the patents were
`selected in terms of which ones would be assigned?
` A. Those patents that we felt were specific to
`the litigation.
` Q. So Wirtgen America was going to receive only
`those patents that were going to be subject of the
`litigation?
` A. To my understanding.
` Q. Did -- strike that.
` Was there any discussion about the
`possibility of including Wirtgen GmbH as a party to the
`case?
` ATTORNEY LEVY: And I'll object here to the
`extent don't reveal attorney-client privileged
`information.
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 7 of 11 PageID #: 30344
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 80
` Q. And this -- and if you go to the next page,
`you can see that it was -- it looks like Mr. Hahn -- or
`Dr. Hahn had signed this on May 16, 2017. If you see
`his -- do you see his signature?
` A. I can't tell if that says 16 or 18, but I
`think you're right. It looks like -- I can't see.
` Q. But sometime in May of 2017, you'd say?
` A. 170616 -- oh, 516 is what it looks like to
`me. Yeah. May 16.
` Q. Does that timing sound about right to you in
`terms of when they were -- the patents were assigned
`versus when the lawsuit initiated?
` A. I could not comment on the timing of those.
`No.
` Q. Okay. Was it your understanding that the
`patents were being assigned shortly before the lawsuit
`was going to be filed?
` A. I think this is all documentation I received
`from counsel regarding the lawsuit.
` Q. Okay. So the only information you had about
`the timing of when patents were being assigned and when
`the lawsuit was being filed is just based on your
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`202-232-0646
`
`
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 8 of 11 PageID #: 30345
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 81
`
`communications with counsel?
` A. Correct.
` Q. And I believe I think you said earlier you
`had not been -- strike that.
` After the patents were assigned from Wirtgen
`GmbH to Wirtgen America, did you become involved in the
`patent prosecution process for patent applications that
`were in those families?
` A. I always struggle with patent prosecution
`process.
` The -- we were the assignee of the patents,
`and these were patents that were part of the ITC
`proceedings.
` Q. And I think you were asked this maybe back in
`your 2018 deposition, but do you know today if Wirtgen
`America is paying the maintenance fees for these
`patents that were assigned?
` A. I don't have visibility to the maintenance
`fees. I know what they are, and I'm familiar with that
`process. But the maintenance fees, I believe are
`handled by Brad McKinney, who's our CFO.
` Q. And what about -- or strike that.
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`202-232-0646
`
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 9 of 11 PageID #: 30346
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
` C E R T I F I C A T E
`
`Page 296
`
` I, Virginia Dodge, Registered Diplomate
`Reporter and Tennessee Licensed Court Reporter and
`Notary Public, do hereby certify that I recorded to the
`best of my skill and ability by machine shorthand the
`deposition contained herein, that same was reduced to
`computer transcription by myself, and that the
`foregoing is a true, accurate and complete transcript
`of the deposition testimony heard in this cause.
` I further certify that the witness was first
`duly sworn by me and that I am not an attorney or
`counsel of any of the parties, nor a relative or
`employee of any attorney or counsel connected with the
`action, nor financially interested in the action.
` This 9th day of April, 2023.
`
` ___________________________________
` Virginia Dodge
` My Commission Expires: 8/23/2026
` Tennessee LCR No. 734, Exp: 6/30/24
` Tennessee CCR No. 0499, Exp: 6/30/24
` RDR/CRR #835835
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 10 of 11 PageID #: 30347
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 297
`
` James McEvoy 30(b)(6), c/o
` Patterson Intellectual Property Law, P.C.
` 1600 Division Street, Suite 500
` Nashville, TN 37203
`
` Case: Wirtgen America Inc. v. Caterpillar Inc.
` Date of deposition: March 31, 2023
` Deponent: James McEvoy 30(b)(6)
`
` Please be advised that the transcript in the above
` referenced matter is now complete and ready for signature.
` The deponent may come to this office to sign the transcript,
` a copy may be purchased for the witness to review and sign,
` or the deponent and/or counsel may waive the option of
` signing. Please advise us of the option selected.
` Please forward the errata sheet and the original signed
` signature page to counsel noticing the deposition, noting the
` applicable time period allowed for such by the governing
` Rules of Procedure. If you have any questions, please do
` not hesitate to call our office at (202)-232-0646.
`
`
` Sincerely,
` Digital Evidence Group
` Copyright 2023 Digital Evidence Group
` Copying is forbidden, including electronically, absent
` express written consent.
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`Case 1:17-cv-00770-JDW Document 305-2 Filed 02/02/24 Page 11 of 11 PageID #: 30348
`
`3/31/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`Confidential - Attorneys' Eyes Only
`
`James McEvoy 30(b)(6)
`
`Page 298
`
` Digital Evidence Group, L.L.C.
` 1730 M Street, NW, Suite 812
` Washington, D.C. 20036
` (202) 232-0646
`
` SIGNATURE PAGE
` Case: Wirtgen America Inc. v. Caterpillar Inc.
` Witness Name: James McEvoy 30(b)(6)
` Deposition Date: March 31, 2023
`
` I do hereby acknowledge that I have read
` and examined the foregoing pages
` of the transcript of my deposition and that:
`
` (Check appropriate box):
` ( ) The same is a true, correct and
` complete transcription of the answers given by
` me to the questions therein recorded.
` ( ) Except for the changes noted in the
` attached Errata Sheet, the same is a true,
` correct and complete transcription of the
` answers given by me to the questions therein
` recorded.
`
` _____________ _________________________
` DATE WITNESS SIGNATURE
`
`
`
` _____________ __________________________
` DATE NOTARY
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`202-232-0646
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