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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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`Case No. 1:17-cv-00770-JDW
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`ORDER
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`AND NOW, this 21st day of April, 2023, upon consideration of Caterpillar’s Motion
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`to Exclude Discovery From Wirtgen GmbH Witnesses (D.I. No. 188), I note the following.
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`1.
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`“If a party fails to provide information or identify a witness as required by
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`Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
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`evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified
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`or is harmless.” Fed. R. Civ. P. 37(c)(1). In the Third Circuit, striking or excluding critical
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`evidence “is an ‘extreme’ sanction.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 297 (3d
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`Cir. 2012) (citations omitted). Thus, before a court imposes such a sanction, it must
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`consider the following factors: “(1) ‘the prejudice or surprise in fact of the party against
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`whom’ … the excluded evidence would have been offered; (2) ‘the ability of that party to
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`cure the prejudice’; (3) the extent to which allowing such … evidence would ‘disrupt the
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`orderly and efficient trial of the case …’; (4) any ‘bad faith or willfulness in failing to comply
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`Case 1:17-cv-00770-JDW-MPT Document 191 Filed 04/21/23 Page 2 of 3 PageID #: 15622
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`with the court’s order’; and (5) the importance of the excluded evidence.” Id. at 298
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`(quoting Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904-905 (3d
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`Cir.1977), overruled on other grounds by, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d
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`Cir.1985)). The movant must meet a “stringent burden” to demonstrate that the extreme
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`remedy of exclusion is warranted. Power Integrations, Inc. v. Fairchild Semiconductor Int'l,
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`Inc., 763 F. Supp. 2d 671, 692 (D. Del. 2010).
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`2.
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` Caterpillar’s motion does not address these factors, nor do the factors
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`weigh in favor of exclusion. While Wirtgen’s late disclosure of Günter Hähn and Christian
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`Berning as witnesses caused some amount of prejudice to Caterpillar, there is time to cure
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`that prejudice and allow for the “orderly and efficient trial” of this case as scheduled. See
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`ZF Meritor, LLC, 696 F.3d at 298. Wirtgen also did not fail to comply with a court order
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`but rather a rule of civil procedure. And testimony by the patents’ inventors would seem
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`to be important to the case.
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`3.
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`Because four of the Pennypack factors disfavor exclusion, I will not impose
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`this extreme sanction. To cure Wirtgen’s late disclosure, I will allow discovery of the
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`witnesses.
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`In light of the foregoing, it is ORDERED that Caterpillar’s Motion (D.I. No. 188) is
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`GRANTED IN PART and DENIED IN PART. The Motion is denied to the extent it requests
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`I strike the witnesses from Wirtgen America’s Initial Disclosures and exclude evidence
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`from the witnesses. However, Caterpillar may take discovery of Günter Hähn and Christian
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`2
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`Case 1:17-cv-00770-JDW-MPT Document 191 Filed 04/21/23 Page 3 of 3 PageID #: 15623
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`Berning. The Parties shall meet and confer to resolve any disputes about the scope of ESI
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`discovery of the witnesses, the location for depositions of the witnesses, and the scope of
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`those witnesses’ testimony. On or before April 28, 2023, they shall send me a letter that
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`does not exceed six single-spaced pages and that either (a) informs me that they have
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`resolved all disputes or (b) sets forth any remaining disputes and each party’s position.
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`BY THE COURT:
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`/s/ Joshua D. Wolson
`JOSHUA D. WOLSON, J.
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`3
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