Case 1:17-cv-00770-JDW Document 403 Filed 05/31/24 Page 1 of 5 PageID #: 37266
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`WIRTGEN AMERICA, INC.
`
`Plaintiff/Counterclaim-Defendant,
`
`v.
`
`CATERPILLAR INC.
`
`Defendant/Counterclaim-Plaintiff.
`
`)
`)
`) C.A. No. 17-770-JDW
`) JURY TRIAL DEMANDED
`)
`) REDACTED VERSION
`)
`Filed: May 31, 2024
`)
`)
`
`WIRTGEN AMERICA, INC.’S RESPONSE TO
`CATERPILLAR’S MOTION TO SEAL
`
`In response to Caterpillar’s motion to seal, Wirtgen America, Inc. (“Wirtgen”) seeks to
`
`redact from the public record limited portions of the following:
`
`1. Caterpillar’s Brief in Support of its Opposition to Wirtgen America’s Motion for
`
`Enhanced Damages, Attorneys’ Fees, Injunction or Ongoing Royalties, and Other
`
`Relief (D.I. 389);
`
`2. Declaration of Christopher D. Mays and certain underlying exhibits thereto (D.I.
`
`392); and
`
`3. Declaration of Brett Reed and one underlying exhibit thereto (D.I. 393).
`
`The Court ordered Wirtgen to file this response to Caterpillar’s motion to seal. See
`
`D.I. 394. The information in these documents and exhibits were either designated highly
`
`confidential and produced pursuant to the Protective Order in this case or designated
`
`Confidential Business Information and produced in the ITC action pursuant to the protective
`
`order in that action. The portions of these documents that Wirtgen seeks to seal are highlighted in
`
`yellow in the respective documents.
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`WIRTGEN AMERICA, INC.
`
`Plaintiff/Counterclaim-Defendant,
`
`v.
`
`CATERPILLAR INC.
`
`Defendant/Counterclaim-Plaintiff.
`
`)
`)
`) C.A. No. 17-770-JDW
`) JURY TRIAL DEMANDED
`)
`) REDACTED VERSION
`)
`Filed: May 31, 2024
`)
`)
`
`WIRTGEN AMERICA, INC.’S RESPONSE TO
`CATERPILLAR’S MOTION TO SEAL
`
`In response to Caterpillar’s motion to seal, Wirtgen America, Inc. (“Wirtgen”) seeks to
`
`redact from the public record limited portions of the following:
`
`1. Caterpillar’s Brief in Support of its Opposition to Wirtgen America’s Motion for
`
`Enhanced Damages, Attorneys’ Fees, Injunction or Ongoing Royalties, and Other
`
`Relief (D.I. 389);
`
`2. Declaration of Christopher D. Mays and certain underlying exhibits thereto (D.I.
`
`392); and
`
`3. Declaration of Brett Reed and one underlying exhibit thereto (D.I. 393).
`
`The Court ordered Wirtgen to file this response to Caterpillar’s motion to seal. See
`
`D.I. 394. The information in these documents and exhibits were either designated highly
`
`confidential and produced pursuant to the Protective Order in this case or designated
`
`Confidential Business Information and produced in the ITC action pursuant to the protective
`
`order in that action. The portions of these documents that Wirtgen seeks to seal are highlighted in
`
`yellow in the respective documents.
`
`1
`
`
`
`Case 1:17-cv-00770-JDW Document 403 Filed 05/31/24 Page 2 of 5 PageID #: 37267
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`
`
`Courts have long recognized that commercial litigation in general—and patent litigation
`
`in particular—compels parties to disclose their most confidential information to their most
`
`threatening competitors. For discovery in such cases to work, parties must be able to rely on
`
`protective orders and the ability to seal confidential information. See Lunareye, Inc. v. Gordon
`
`Howard Assocs., Inc., 78 F.Supp.3d 671, 676 (E.D. Tex. 2015) (“[C]ompliance with protective
`
`orders is essential to modern discovery practices.”); Apple Inc. v. Samsung Elecs. Co., Ltd., No.
`
`CV 11–01846 LHK, 2013 WL 9768650, at *1 (N.D. Cal. Oct. 2, 2013) (“Time and again in
`
`competitor patent cases, parties resist producing confidential information to their adversaries’
`
`lawyers. . . . Yet time and again, the court assuages these fears with assurances that a protective
`
`order will keep the information out of the competitors’ hands.”). Caterpillar and Wirtgen are
`
`exactly the kinds of competitors that Protective Orders are intended to protect.
`
`As itemized below, the portions of the brief, the declarations, and the underlying exhibits
`
`that Wirtgen seeks to seal fall under two categories: (1) internal Wirtgen confidential email
`
`communications related to Wirtgen’s pricing and sales strategies; and (2) confidential business
`
`information produced in the ITC proceeding. Despite Caterpillar’s claims that some of these
`
`email communications were admitted as evidence at trial, none of the email communications that
`
`Wirtgen now seeks to seal were admitted as evidence at trial. See, e.g., Mays Declaration, D.I.
`
`392, ¶¶ 56–58.
`
`The public interest in knowing these internal strategy communications is minimal and is
`
`greatly outweighed by the sensitivity of the information to Wirtgen. The impact of these
`
`redactions on the readability of the motion is likewise minimal, and the completeness of the
`
`public record created by the briefing and resolution of this motion will not be undermined by
`
`these small but essential redactions. This is the type of information that Courts routinely allow
`
`parties to file under seal.
`
`2
`
`
`
`Case 1:17-cv-00770-JDW Document 403 Filed 05/31/24 Page 3 of 5 PageID #: 37268
`
`Document
`D.I. 389
`
`Cite
`p. 19
`
`Redaction
`Quoted text
`
`Mays Decl. ¶ 47
`
`¶ 48
`
`¶ 50
`
`¶ 51
`
`¶ 53
`
`¶ 54
`
`¶ 56
`
`¶ 57
`
`¶ 58
`
`Ex. 8
`
`Ex. 9
`
`Ex. 10
`
`Ex. 11
`
`Bulleted
`quotes
`Bulleted
`quotes
`Quoted text
`
`Bulleted
`quotes
`Screenshot of
`Screenshot of
`Bulleted
`quotes
`Screenshot of
`Screenshot of
`CBI invoice
`Entirety
`
`Entirety
`
`Quotes to
`emails
`Entirety
`
`Ex. 12
`
`Entirety
`
`Ex. 13
`
`
`Ex. 14
`
`Entirety
`
`Ex. 31
`
`Entirety
`
`Ex. 32
`
`Entirety
`
`Reed Decl.
`
`¶ 14
`
`Quoted text
`
`¶ 15
`
`¶ 18
`
`Quoted text
`
`Quoted text
`
`
`
`Justification
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Document designated as confidential business
`information at the ITC
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`
`3
`
`
`
`Case 1:17-cv-00770-JDW Document 403 Filed 05/31/24 Page 4 of 5 PageID #: 37269
`
`Document
`
`Cite
`¶ 21
`
`Redaction
`Quoted text
`
`Ex. R2,
`p. 45
`Ex. R2,
`FN 113
`Ex. R2,
`FN 115
`Ex. R2,
`p. 46
`Ex. R2,
`p. 47
`Ex. R2,
`FN 122
`Ex. R2,
`FN 123
`Ex. R2,
`p. 49
`Ex. R2,
`FN 130
`
`Text
`
`Text
`
`Text
`
`Text
`
`Text
`
`Text
`
`Text
`
`Text
`
`Text
`
`
`
`Justification
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`Confidential internal Wirtgen email communications
`related to pricing and sales strategies
`
`For the foregoing reasons, Wirtgen asks that the Court seal the above-listed portions of
`
`
`
`Caterpillar’s Brief in Support of its Opposition to Wirtgen America’s Motion for Enhanced
`
`Damages, Attorneys’ Fees, Injunction or Ongoing Royalties, and Other Relief, the Declaration of
`
`Christopher D. Mays, and the Declaration of Brett Reed.
`
`4
`
`
`
`Case 1:17-cv-00770-JDW Document 403 Filed 05/31/24 Page 5 of 5 PageID #: 37270
`
`
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Samantha G. Wilson (No. 5816)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`swilson@ycst.com
`
`
`Attorneys for Wirtgen America, Inc.
`
`
`Dated: May 31, 2024
`
`OF COUNSEL:
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`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
`mak@iplawgroup.com
`- and -
`Daniel E. Yonan
`Paul A. Ainsworth
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`1100 New York Ave., NW, Suite 600
`Washington, DC 20005
`(202) 371-2600
`dyonan@sternekessler.com
`painsworth@sternekessler.com
`
`
`
`
`
`5
`
`
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