Case 1:17-cv-00770-JDW Document 235 Filed 10/17/23 Page 1 of 5 PageID #: 24273
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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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`Case No. 1:17-cv-00770-JDW
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`ORDER
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`AND NOW, this 17th day of October, 2023, upon consideration of the Joint Motion
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`CATERPILLAR, INC.,
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`Defendant.
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`To Seal (D.I. 208) and the Motion To Seal (D.I. 231), I note as follows.
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`1.
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`The Federal Circuit applies regional circuit law to procedural questions that
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`are not themselves substantive patent law issues so long as they do not (A) pertain to
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`patent law, (B) bear an essential relationship to matters committed to the Federal Circuit’s
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`exclusive control by statute, or (C) clearly implicate the jurisprudential responsibilities of
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`the Federal Circuit in a field within its exclusive jurisdiction. See GFI, Inc. v. Franklin Corp.,
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`265 F.3d 1268, 1272 (Fed. Cir. 2001). District courts apply regional circuit law with respect
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`to motions to seal in patent cases.
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`2.
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`The common law presumes that the public has a right of access to judicial
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`records. In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir.
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`2019). “In the Third Circuit, the right is particularly robust.” In re Application of Storag Etzel
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`
`
`WIRTGEN AMERICA, INC.,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`Case No. 1:17-cv-00770-JDW
`
`
`
`
`
`
`
`ORDER
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`AND NOW, this 17th day of October, 2023, upon consideration of the Joint Motion
`
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`CATERPILLAR, INC.,
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`
`
`
`
`
`Defendant.
`
`To Seal (D.I. 208) and the Motion To Seal (D.I. 231), I note as follows.
`
`1.
`
`The Federal Circuit applies regional circuit law to procedural questions that
`
`are not themselves substantive patent law issues so long as they do not (A) pertain to
`
`patent law, (B) bear an essential relationship to matters committed to the Federal Circuit’s
`
`exclusive control by statute, or (C) clearly implicate the jurisprudential responsibilities of
`
`the Federal Circuit in a field within its exclusive jurisdiction. See GFI, Inc. v. Franklin Corp.,
`
`265 F.3d 1268, 1272 (Fed. Cir. 2001). District courts apply regional circuit law with respect
`
`to motions to seal in patent cases.
`
`2.
`
`The common law presumes that the public has a right of access to judicial
`
`records. In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir.
`
`2019). “In the Third Circuit, the right is particularly robust.” In re Application of Storag Etzel
`
`
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`Case 1:17-cv-00770-JDW Document 235 Filed 10/17/23 Page 2 of 5 PageID #: 24274
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`GmbH for an Ord., Pursuant to 28 U.S.C. § 1782, to Obtain Discovery for Use in a Foreign
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`Proceeding, No. 19-cv-209, 2020 WL 2949742, at *7 (D. Del. Mar. 25, 2020), report and
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`recommendation adopted in part, 2020 WL 2915781 (D. Del. June 3, 2020). “A ‘judicial
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`record’ is a document that ‘has been filed with the court . . . or otherwise somehow
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`incorporated or integrated into a district court’s adjudicatory proceedings.’” Avandia, 924
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`F.3d at 672 (quotation omitted). To overcome the strong presumption of access that
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`attaches to judicial records, a movant must show that an interest in secrecy outweighs the
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`presumption by demonstrating that the material is the kind of information that courts will
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`protect and that disclosure will work a clearly defined and serious injury to the party
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`seeking closure. See id. (emphasis added).
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`3.
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`A party seeking to file material under seal must make a specific showing;
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`“[b]road allegations of harm, bereft of specific examples or articulated reasoning, are
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`insufficient.” Id. at 673 (quotation omitted). A district judge “must ‘conduct[ ] a document-
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`by-document review’” to determine whether sealing is warranted. Id. (same).
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`4.
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`In the Joint Motion To Seal (D.I. 208), Caterpillar seeks to seal four types of
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`information: a) source code; b) “CTCT” documents; c) information covered by a protective
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`order in another case, and d) non-public financial information. The Motion To Seal (D.I.
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`231) also seeks to seal the financial information.
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`5.
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`First, with respect to source code, a party's confidential source code is a type
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`of information that courts may protect from public disclosure. See, e.g., Mextel, Inc. v. Air-
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`Case 1:17-cv-00770-JDW Document 235 Filed 10/17/23 Page 3 of 5 PageID #: 24275
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`Shields, Inc., No. 01-cv-7308, 2004 WL 614601, at *1 (E.D. Pa. Jan. 30, 2004). Caterpillar has
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`submitted a sworn declaration from its General Counsel stating that if Wirtgen,
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`Caterpillar’s primary competitor and counterparty in the litigation, viewed the source
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`code, Wirtgen could use that information to Caterpillar’s detriment. Although the report
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`doesn’t quote the source code, it describes it with enough detail that I conclude that
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`Caterpillar has shown that harm would result from the disclosure, and Caterpillar has
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`therefore overcome the public’s common law interest in this material.
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`6.
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`Second, the CTCT documents outline Caterpillar’s proprietary technology
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`using schematics, charts, and other specifications. Caterpillar’s expert, Dr. John M. Lumkes,
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`referenced those documents in his reports. Proprietary technical information is a type of
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`information that courts protect. See, e.g., Cordis Corp. v. Abbott Lab'ys, No. CV 07-2265
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`(JAP), 2009 WL 10728329, at *2 (D.N.J. Apr. 8, 2009). Caterpillar states that if the CTCT
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`information was made public, competitors could copy Caterpillar’s software, harming
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`Caterpillar’s competitive standing. Caterpillar has articulated a specific harm that would
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`come from making this information public.
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`7.
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`Third, Caterpillar asks to redact certain documents that are covered by a
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`protective order in a proceeding before the US International Trade Commission. A court
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`may seal that type of information and Caterpillar only asks to maintain the redactions that
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`the Commission deemed fit. I will allow those redactions because Caterpillar could face
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`sanctions from the ITC if it violated the ITC’s protective order.
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`Case 1:17-cv-00770-JDW Document 235 Filed 10/17/23 Page 4 of 5 PageID #: 24276
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`8.
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`Fourth, both Caterpillar and Wirtgen seek to seal their non-public finances
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`including sales, costs, revenues, and profits. Courts will protect non-public financial
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`information. See Avandia, 924 F.3d at 679. Both Parties articulate the same harm.
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`Caterpillar states that disclosure would damage Caterpillar’s negotiating position by
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`providing counterparties with sensitive information that could be used to press Caterpillar
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`for “discounts or other favorable treatment.” (D.I. 225 at 6). Wirtgen could similarly
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`leverage that information to “gain an advantage in reaching out to customers, pricing its
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`own products, and offering discounts to secure sales.” Id. Wirtgen has submitted a sworn
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`declaration from its President and CEO stating that this information is extremely sensitive
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`and its disclosure would “place Wirtgen . . . at a competitive disadvantage in the
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`marketplace and potentially harm Wirtgen[]’s market share and customer relationships”
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`specifically in relation to Caterpillar. (D.I. 216 at 1-2). The Parties detail how a competitor
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`would harness this protected information. They point to one another as such a threat. The
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`Parties have done more than allege unspecified harms from unnamed entities. See
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`ART+COM Innovationpool GmbH v. Google Inc., No. 14-cv-217, 2016 WL 10028722, at *5
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`(D. Del. Aug. 10, 2016). I find their articulation of harm sufficient to meet the Avandia
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`standard.
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`In light of the foregoing, it is ORDERED that the Joint Motion to Seal (D.I. 208)
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`is GRANTED.
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`Case 1:17-cv-00770-JDW Document 235 Filed 10/17/23 Page 5 of 5 PageID #: 24277
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`It is FURTHER ORDERED that Caterpillar’s Motion to Seal (D.I. 231) is GRANTED.
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`BY THE COURT:
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`/s/ Joshua D. Wolson
`JOSHUA D. WOLSON, J.
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