Case 1:17-cv-00770-JDW Document 405 Filed 06/07/24 Page 1 of 4 PageID #: 37948
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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 7th day of June, 2024, upon consideration of Caterpillar, Inc.’s
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`CATERPILLAR, INC.,
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`Defendant.
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`Motion To Seal (D.I. 390), 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 7th day of June, 2024, upon consideration of Caterpillar, Inc.’s
`
`
`CATERPILLAR, INC.,
`
`
`
`
`
`
`Defendant.
`
`Motion To Seal (D.I. 390), 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 405 Filed 06/07/24 Page 2 of 4 PageID #: 37949
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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 did not make the required showing when it filed its Motion to
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`Seal certain confidential information of Wirtgen America, Inc., so I ordered Wirtgen to file
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`a response. Accordingly, I evaluate Caterpillar’s Motion based on Wirtgen’s showing.
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`5.
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`Wirtgen seeks to seal two types of information: (a) internal email
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`communications related to Wirtgen’s pricing and sales strategies, and (b) confidential
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`information produced in a prior ITC proceeding.
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`Case 1:17-cv-00770-JDW Document 405 Filed 06/07/24 Page 3 of 4 PageID #: 37950
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`6.
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`With respect to the email communications, Wirtgen does not show that this
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`is the type of information that a court will protect. Wirtgen cites two out-of-circuit cases
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`ruling on potential violations of a court’s protective order. (See D.I. 402 at 2 (citing
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`Lunareye, Inc. v. Gordon Howard Assocs., Inc., 78 F. Supp. 3d 671, 676 (E.D. Tex. 2015);
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`Apple Inc. v. Samsung Elecs. Co., Ltd., No. CV 11–01846 LHK, 2013 WL 9768650, at *1 (N.D.
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`Cal. Oct. 2, 2013)). But protective orders and sealing aren’t the same thing. They are
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`evaluated under separate standards, and it is error for a court to conflate the two
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`standards. See Avandia, 924 F.3d at 675. “A more rigorous standard is applied in
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`determining whether court documents can be sealed than is applied to protective orders
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`shielding discovery materials.” Midwest Athletics & Sports All. LLC v. Ricoh USA, Inc., 395
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`F. Supp. 3d 461, 463 (E.D. Pa. 2019). Because “[a] party's confidentiality designation does
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`not determine whether a document warrants sealing under Avandia[,]” I find Wirtgen’s
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`cited cases inapposite. Domus Bww Funding, LLC v. Arch Ins. Co., No. 1:23-CV-00094-JDW,
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`2023 WL 9103865, at *1 (E.D. Pa. Dec. 19, 2023).
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`7.
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`Even if I found that these materials are of the type that a court may protect,
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`Wirtgen hasn’t shown a clearly defined and serious injury that would occur from their
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`disclosure. Wirtgen argues that disclosure would reveal this information to its “most
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`threatening competitors.” (D.I. 402 at 2.) This unsupported attorney argument falls well
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`below the high burden necessary to overcome the public’s right of access. It does not
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`explain what use a competitor might make of the information or how its public disclosure
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`Case 1:17-cv-00770-JDW Document 405 Filed 06/07/24 Page 4 of 4 PageID #: 37951
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`would injure Wirtgen. Wirtgen’s proposed redactions go beyond non-public financial
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`information such as sales figures or price lists. It’s unclear how these generic
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`communications made years in the past would now give a competitor an unfair advantage
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`over Wirtgen in the marketplace. (See, e.g., D.I. 402-4 at 45 (quoting a Wirtgen employee
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`stating “customers and dealers are tired of our annual price increases … We have to keep
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`in mind the pricing spread between the machines”)).
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`8.
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`Wirtgen also seeks to seal one document covered by the ITC protective
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`order. I have previously granted a motion to seal that covered certain documents marked
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`“confidential” under the ITC’s protective order. (See D.I. 235 at 3.) However, in that
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`instance, the proposed redactions to the documents conformed to the redactions that
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`the USITC or US Customs and Border Protection had ordered for those documents.
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`Wirtgen doesn’t make such a showing here. For the reasons stated above, the fact that a
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`document is covered by a protective order is insufficient on its own to warrant sealing
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`and Wirtgen provides nothing more.
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`Therefore, it is ORDERED that the Motion to Seal (D.I. 390) is DENIED. Caterpillar
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`and Wirtgen shall unseal the documents on the docket related to this Motion.
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`BY THE COURT:
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`/s/ Joshua D. Wolson
`JOSHUA D. WOLSON, J.
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