Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 1 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 1
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE WESTERN DISTRICT OF WISCONSIN
`
`OXBO INTERNATIONAL CORP., )
` )
` Plaintiff, )
` )
` vs. )Civil Action No.
` )15-CV-292-JDP
`H&S MANUFACTURING COMPANY, )
`INC., )
` )VIDEOTAPED
` Defendant. )DEPOSITION OF
` )JAKE KAPPELMAN
`H&S MANUFACTURING COMPANY, )
`INC., )
` )
` Counterclaim Plaintiff, )
` )
` vs. )
` )
`OXBO INTERNATIONAL CORP. )
`AND KUHN NORTH AMERICA, INC., )
` )
` Counterclaim Defendants.)
`-------------------------------)
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` HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`
` THE VIDEOTAPED DEPOSITION OF JAKE
`KAPPELMAN, taken before Buffy Nelson,
`Registered Professional Reporter and Notary
`Public, commencing at 9:16 a.m., November 15,
`2016, at 305 Second Avenue Southeast, Cedar
`Rapids, Iowa.
`
` Reported by: Buffy Nelson, R.P.R.
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`1-877-489-0367
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`DTI Court Reporting Solutions - Minnesota
`www.deposition.com
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`1
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 2 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 2
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`Page 4
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`1 A P P E A R A N C E S
`2 Plaintiff by:
` SHANE A. BRUNNER
`3 Attorney at Law
` Merchant & Gould, PC
`4 10 East Doty Street
` Suite 600
`5 Madison, WI 53703
` (608) 280-6750
`6 sbrunner@merchantgould.com
`7 H&S Manufacutring Company, Inc., by:
` ERIC H. CHADWICK
`8 Attorney at Law
` Patterson Thuente
`9 4800 IDS Center
` 80 South Eighth Street
`10 Minneapolis, MN 55402
` (612) 349-5740
`11 chadwick@ptslaw.com
`12 Videographer: Wesley Nygren
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`Exhibit 12 Photos
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`Exhibit 13 Photos
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`170
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`Page 3
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`Page 5
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`1 P R O C E E D I N G S
`2 (Exhibit 1 was marked for
`3 identification by the reporter.)
`4 THE VIDEOGRAPHER: We are on the
`5 video record. This begins DVD number 1 in the
`6 deposition of Jake Kappelman in the matter of
`7 Oxbo International Corp. versus H&S
`8 Manufacturing Company, Inc., filed in the
`9 United States District Court, Western District
`10 of Wisconsin, Case Number 15-CV-292-JDP.
`11 Today's date is November 15, 2016. The time on
`12 the video screen is 9:16 a.m. The video
`13 operator today is Wesley Nygren, certified
`14 legal video specialist. This deposition is
`15 being taken at 305 Second Avenue Southeast,
`16 Cedar Rapids, Iowa.
`17 Will counsel please identify
`18 yourselves and state whom you represent.
`19 MR. BRUNNER: Shane Brunner of
`20 Merchant & Gould for the plaintiff, Oxbo.
`21 MR. CHADWICK: Eric Chadwick,
`22 Patterson Thuente, for the defendant
`23 H&S Manufacturing.
`24 THE VIDEOGRAPHER: The court
`25 reporter today is Buffy Nelson, a certified
`2 (Pages 2 to 5)
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`1-877-489-0367
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`DTI Court Reporting Solutions - Minnesota
`www.deposition.com
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`2
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 3 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 6
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`Page 8
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`1 shorthand reporter. Would the reporter please
`2 swear in the witness.
`3 JAKE KAPPELMAN,
`4 called as a witness, having been first duly
`5 sworn, testified as follows:
`6 DIRECT EXAMINATION
`7 BY MR. BRUNNER:
`8 Q. Morning, Mr. Kappelman.
`9 A. Morning.
`10 Q. Could you please state your name for
`11 the record and spell your name?
`12 A. Jake Kappelman, J-a-k-e
`13 K-a-p-p-e-l-m-a-n.
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 10 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 34
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`18 Q. Was H&S your first job after
`19 graduating college?
`20 A. Yes.
`21 Q. How long did you work there?
`22 A. Let's see. I worked there from May of
`23 2008 full-time until May of 2012.
`24 Q. What was your title?
`25 A. Product engineer.
`10 (Pages 34 to 37)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 11 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 38
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`Page 40
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`1 Q. And while you were at H&S, what were
`2 your roles and responsibilities?
`3 A. Basically I spent most of my time on
`4 the Tri-Flex, I'd say, program, sharing some
`5 responsibility with grinder-mixers and the
`6 manure spreaders.
`7 Q. And when you say most of your time,
`8 are you talking 95 percent of your time was on
`9 the Tri-Flex?
`10 A. Probably between 85 and 90.
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`Page 39
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`20 Q. And what was your role with respect to
`21 the Tri-Flex?
`22 A. So Tri -- for the Tri-Flex I was
`23 primarily responsible for the pick-up
`24 cross-conveyor design, basically refining some
`25 of the framework design, improving its
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`1 durability and manufacturability, cost. I had
`2 some involvement with hydraulics, then some
`3 involvement with electrical.
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`11 (Pages 38 to 41)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 12 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 42
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`Page 44
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`1 at a foldable design similar to what was out
`2 there on the market already.
`3 Q. What was out on the market already at
`4 that time?
`5 A. Kuhn had a product out on the market,
`6 Oxbo had a product out on the market, and ROC
`7 out of Italy had a product on the market. Not
`8 sure if Kuhn's was on the market, but it was
`9 definitely in the field. It was on their
`10 European web site, so there were videos posted
`11 by Kuhn, so --
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`22 Q. At what stage of development was the
`23 Tri-Flex when you started in May of 2008?
`24 A. Conceptualizing, looking at a -- I
`25 would say everyone in engineering was looking
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`www.deposition.com
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`12 (Pages 42 to 45)
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`6
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 14 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`14 Q. How was it decided that the Tri-Flex
`15 would have three pick-up assemblies?
`16 A. It's common amongst the industry. So
`17 you take a look at the competitors, they're all
`18 running three pick-up assemblies.
`19 Q. And Oxbo is one of those --
`20 A. Yes.
`21 Q. -- that had three pick-up assemblies?
`22 A. Yes.
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`14 (Pages 50 to 53)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 15 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`10 Q. Did you look at any Oxbo mergers when
`11 you were designing the Tri-Flex?
`12 A. Yes.
`13 Q. And how -- in what way did you look at
`14 the Oxbo mergers?
`15 A. Just how the machine -- we looked at
`16 how the machine would fold. We watched them
`17 work in the field. And this was the same for
`18 both Kuhn and ROC. Just how the pick-ups were
`19 constructed, what would they -- what would they
`20 fold down to for width for transport?
`21 Q. Do you recall when you were looking at
`22 the Oxbo mergers?
`23 A. Would have probably been prior to the
`24 development of the concepts, so --
`25 Q. So prior --
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`Page 55
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`1 A. -- that would have been after the
`2 concepts were developed but prior to the
`3 development of the one concept.
`4 Q. So to put a time frame on that, it
`5 would be after fall of 2008, but sometime
`6 before completion of the Tri-Flex concept
`7 itself?
`8 A. Yes.
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`22 Q. So you had looked at competitive
`23 machines like Oxbo's throughout the entire
`24 development process?
`25 A. We looked at all machines throughout
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`1 the development process.
`2 Q. And that includes the Oxbo machine?
`3 A. Includes the Oxbo, yes.
`4 Q. Do you know what Oxbo machines you
`5 were looking at?
`6 A. I believe the only one we took a close
`7 look at was a 310 at the time. We did see a
`8 334 on the dealer lot, but that was after the
`9 Tri-Flex was in production.
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`15 (Pages 54 to 57)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 17 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 62
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`7 Q. Where did you view an Oxbo merger?
`8 A. We -- at just customer -- customers
`9 that we had tested with previously. Jim Kappel
`10 would make those arrangements.
`11 Q. So an H&S customer would have an Oxbo
`12 merger, and then you could go and take a look
`13 at it?
`14 A. Yeah.
`15 Q. Did you do any disassembly of the Oxbo
`16 merger when you were looking at it?
`17 A. No.
`18 Q. Did you take pictures of it?
`19 A. Yes.
`20 Q. Did you personally take the pictures
`21 of it?
`22 A. Yes.
`23 Q. Were there other people at H&S with
`24 you when you were taking pictures of the Oxbo
`25 merger?
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`Page 63
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`Page 65
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`1 A. Yes.
`2 Q. Who was with you?
`3 A. Jim Kappel, Greg Landon. I believe
`4 those were the only two at the time.
`5 Q. Did you look at an Oxbo merger on
`6 multiple occasions?
`7 A. We looked at a 310 during our -- I
`8 would say our development process. And like I
`9 said, sometime after our limited production
`10 build, we had looked at a 334 on a dealer lot.
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`14 Q. Did you look at any other windrow
`15 mergers when designing the pick-up frame?
`16 A. Yes.
`17 Q. Which ones did you look at?
`18 A. We looked at ROC, we looked at Oxbo,
`19 we looked at Kuhn.
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`17 (Pages 62 to 65)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 21 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`2 Q. Did H&S introduce the Tri-Flex after
`3 Oxbo, Kuhn, and ROC introduced their
`4 triple-head mergers?
`5 A. Yes.
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`21 (Pages 78 to 81)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 23 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 86
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`Page 88
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`2 Q. So is it you who decided that the
`3 Tri-Flex would have three pick-up assemblies?
`4 A. I think there was -- it wasn't me who
`5 decided. I just think there was a common
`6 consensus that three was the magic number. It
`7 was already what was out on the market. It was
`8 what customers looked for. It was
`9 manufacturable and cost-effective. So that was
`10 why we had chosen that direction, other than
`11 the competition was using three pick-up
`12 assemblies, so --
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`21 Q. How was it decided the Tri-Flex would
`22 have three belt conveyors, one associated with
`23 each pick-up assembly?
`24 A. That's -- it was pretty common
`25 practice to have one belt conveyor per pick-up.
`Page 89
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`1 You could share the hydraulic power from your
`2 conveyor with your pick-up in order to maintain
`3 cost. It was pretty prevalent on the old H&S
`4 designs as well as the -- a lot of the
`5 competition.
`6 Q. The competition being Oxbo, Kuhn, and
`7 ROC?
`8 A. Yes.
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`23 (Pages 86 to 89)
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 40 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 154
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`Page 156
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`1 Q. And do you recall if -- whether you
`2 were with anybody else from H&S at that -- in
`3 Chilton on that day?
`4 A. I believe I was by myself.
`5 Q. Did you take any pictures?
`6 A. Yes.
`7 Q. Do you know how many you took?
`8 A. No.
`9 Q. What did you do with those pictures
`10 after you took them?
`11 A. Uploaded them to the -- my computer.
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`Page 155
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`11 Q. Is that -- did you go to Hoerth Custom
`12 Services in Chilton, Wisconsin, on October 17,
`13 '08?
`14 A. Yes.
`15 Q. Who did you go with?
`16 A. I can't remember. I might have been
`17 alone.
`18 Q. While you were there, did you also
`19 examine an Oxbo triple-head merger?
`20 A. Yes.
`21 Q. Which one, which Oxbo merger did you
`22 examine?
`23 A. We examined -- it says right here on
`24 the second page of Exhibit 10, Oxbo Avalanche
`25 310.
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`40 (Pages 154 to 157)
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`12
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 41 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 158
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`Page 160
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`1 Tri-Flex?
`2 A. Yes, I believe there was one in
`3 possession.
`4 Q. And was it a paper copy, or did you
`5 have it as a computer file?
`6 A. It was a paper copy.
`7 Q. Do you know when you acquired the
`8 paper copy of the 310 merger manual?
`9 A. No, I can't answer that because I
`10 don't know.
`11 Q. But it was during the period when you
`12 were developing the Tri-Flex?
`13 A. Yes.
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`24 Q. Did you have an Oxbo 310 merger manual
`25 in your possession when you were designing the
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`41 (Pages 158 to 161)
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`13
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 44 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 170
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`18 Q. Mr. Kappelman, I'm going to hand you
`19 what's been marked as Kappelman Exhibit 12, has
`20 Bates numbers H&S 152672 through H&S 157727.
`21 Do you recognize the photographs in
`22 Exhibit 12?
`23 A. Yes.
`24 Q. What are they?
`25 A. Pictures of an Oxbo merger.
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`Page 171
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`1 Q. Do you know what type of Oxbo merger?
`2 A. 334.
`3 Q. Do you know who took those photos?
`4 A. It was either myself or Greg Landon.
`5 Q. And why do you say it was either you
`6 or Greg Landon?
`7 A. We were both there looking at the
`8 machine at the time.
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`44 (Pages 170 to 173)
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`14
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`Case: 3:15-cv-00292-jdp Document #: 246 Filed: 12/05/16 Page 46 of 100
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`JAKE KAPPELMAN November 15, 2016
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`Page 178
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`Page 180
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`3 Q. I'm going to hand you Kappelman
`4 Exhibit 13, which is Bates number H&S 153873
`5 through 153943.
`6 A. Okay.
`7 Q. So you've had a chance to look at
`8 Exhibit 13. Do you -- do you recognize those
`9 photos?
`10 A. Yes.
`11 Q. What are those photos of?
`12 A. Oxbo 334 merger.
`13 Q. And do you know when you -- or do you
`14 know who took those photos?
`15 A. I believe I did.
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`Page 179
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`Page 181
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`1-877-489-0367
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`DTI Court Reporting Solutions - Minnesota
`www.deposition.com
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`46 (Pages 178 to 181)
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`15
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