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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 30th 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. 236), 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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`Case 1:17-cv-00770-JDW Document 251 Filed 10/30/23 Page 2 of 3 PageID #: 29045
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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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`Caterpillar seeks to seal business plans and strategies as well as customer
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`information. (D.I. 237). Both parties ask to seal non-public financial information. (D.I. Nos.
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`237, 242).
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`5.
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`A party's sensitive strategic plans are a type of information that courts may
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`protect from public disclosure. See, e.g., Zuru Ltd. v. Telebrands Corp., 15-548 (CCC), 2016
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`WL 3566957, at *1 (D.N.J. June 29, 2016). Caterpillar has submitted a sworn declaration
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`Case 1:17-cv-00770-JDW Document 251 Filed 10/30/23 Page 3 of 3 PageID #: 29046
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`from its Assistant General Counsel stating that if Wirtgen, Caterpillar’s primary competitor
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`and counterparty in the litigation, viewed these plans, Wirtgen could use that information
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`to Caterpillar’s detriment. Caterpillar has articulated a specific harm that would come from
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`making this information public. A document-by-document review confirms that this
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`request is narrowly tailored.
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`6.
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`Caterpillar also asks to seal information from customer surveys that include
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`its customers’ names and what those customers liked or disliked about their Caterpillar
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`products. Customer lists are a type of information that courts protect. See, e.g., Saturn
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`Wireless Consulting, LLC v. Aversa, No. 17-1637 (KM), 2018 WL 11458894, at *3 (D.N.J.
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`Dec. 26, 2018). Caterpillar states in the sworn declaration that if this information were
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`public, competitors could gain a competitive advantage in soliciting Caterpillar’s current
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`customers by tailoring the solicitation. That is a sufficient harm to justify sealing.
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`7.
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`Finally, both Caterpillar and Wirtgen seek to seal their non-public finances
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`including sales, costs, revenues, and profit. The Parties articulate the same harm as in their
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`prior Joint Motion to Seal (D.I. 208). For the reasons stated in the Order Granting that Joint
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`Motion to Seal (D.I. 235), I find that here the Parties have met the Avandia standard.
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`In light of the foregoing, it is ORDERED that the Joint Motion to Seal (D.I. 236)
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`BY THE COURT:
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`/s/ Joshua D. Wolson
`JOSHUA D. WOLSON, J.
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`is GRANTED.
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