`EAGLE VIEW TECHNOLOGIES, INC., and
`PICTOMETRY INTERNATIONAL CORP.,
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`Plaintiffs,
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`v.
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`NEARMAP US, INC.,
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`Defendant.
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`ORDER DENYING NEARMAP’S
`SHORT FORM DISCOVERY MOTION
`REGARDING DISCOVERY REQUESTS
`SERVED ON OCTOBER 10, 2022 AND
`EARLIER SERVED DISCOVERY
`REQUESTS (DOC. NO. 123)
`
`Case No. 2:21-cv-00283
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`District Judge Ted Stewart
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`Magistrate Judge Daphne A. Oberg
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`Case 2:21-cv-00283-TS-DAO Document 151 Filed 11/07/22 PageID.2965 Page 1 of 4
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`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`In this patent infringement case, Defendant Nearmap US, Inc. moves to compel Plaintiffs
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`Eagle View Technologies, Inc. and Pictometry International Corp. (collectively, “EagleView”) to
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`respond to discovery requests served on October 10, 2022, and to produce a witness for a
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`supplemental Rule 30(b)(6) deposition notice served the same day.1 Nearmap also moves to
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`compel responses to earlier discovery requests to the extent they overlap with the October 10
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`requests.2 EagleView opposes the motion, arguing the October 10 requests and supplemental
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`30(b)(6) topics were untimely and Nearmap failed to confer regarding the earlier requests.3 For
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`the reasons explained below, the motion is denied.4
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`1 (Nearmap’s Short Form Disc. Mot. Regarding Disc. Reqs. Served on October 10, 2022 and
`Earlier Served Disc. Reqs. (“Mot.”), Doc. No. 123.)
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`2 (Id.)
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`3 (Pls.’ Opp’n to Def.’s Short Form Disc. Mot. Regarding Disc. Reqs. Served on October 10,
`2022 and Earlier Served Disc. Reqs. (“Opp’n”), Doc. No. 138.)
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`4 This ruling is based on the parties’ written memoranda, as oral argument is unnecessary. See
`DUCivR 37-1(b)(5)(B).
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`1
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`Case 2:21-cv-00283-TS-DAO Document 151 Filed 11/07/22 PageID.2966 Page 2 of 4
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`First, Nearmap’s October 10 discovery requests were untimely. The operative scheduling
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`order provides the “[d]eadline to serve written discovery before claim construction” was
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`September 30, 2022.5 Nearmap argues its requests were timely under the federal rules because
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`they were served more than thirty days before the November 11, 2022 fact discovery deadline.6
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`Under the federal rules, discovery responses are due thirty days after service,7 meaning discovery
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`requests must be served at least thirty days before the close of fact discovery. But this default
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`deadline is superseded by the court’s scheduling order setting an earlier deadline to serve written
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`discovery. Nearmap also argues the September 30 deadline in the scheduling order applies only
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`to discovery related to claim construction, and it asserts the October 10 discovery requests do not
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`relate to claim construction.8 But this argument misinterprets the scheduling order. The
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`scheduling order does not differentiate between discovery related to claim construction or other
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`topics; rather, it sets one deadline for “fact discovery before claim construction.”9 This deadline,
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`and the prior deadline for serving written discovery, applies to all discovery in this case
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`occurring before claim construction, regardless of the subject matter. The parties may seek to
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`reopen discovery after claim construction, but no other discovery is permitted in the current
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`5 (Am. Patent Case Scheduling Order 2, Doc. No. 99.) EagleView has filed a motion to extend
`the close of fact discovery and subsequent deadlines, (see Pls.’ Mot. to Am. Patent Case
`Scheduling Order, Doc. No. 141), but neither party has requested to extend the deadline to serve
`written discovery.
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`6 (Mot. 2, Doc. No. 123.)
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`7 See Fed. R. Civ. P. 33(b)(2) (interrogatories); Fed. R. Civ. P. 34(b)(2)(A) (requests for
`production of documents); Fed. R. Civ. P. 36(a)(3) (requests for admission).
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`8 (Mot. 2, Doc. No. 123.)
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`9 (Am. Patent Case Scheduling Order 2, Doc. No. 99.)
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`2
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`Case 2:21-cv-00283-TS-DAO Document 151 Filed 11/07/22 PageID.2967 Page 3 of 4
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`scheduling order. Therefore, September 30 was the deadline to serve all written discovery.
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`Nearmap’s October 10 discovery requests were untimely served after this deadline.
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`Second, Nearmap’s supplemental 30(b)(6) deposition notice was untimely. The District
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`of Utah’s local rules require 30(b)(6) notices to be served at least twenty-eight days before the
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`scheduled deposition and at least forty-five days before the discovery cutoff date.10 Nearmap
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`initially served a 30(b)(6) notice of EagleView’s deposition in June 2022.11 Nearmap then
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`served a supplemental 30(b)(6) notice containing three additional topics on October 10, for
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`EagleView’s deposition set for October 27.12 The close of fact discovery is November 11,
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`2022.13 Thus, the supplemental notice was untimely under both provisions of the local rule—it
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`was served less than twenty-eight days before the scheduled deposition and less than forty-five
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`days before the fact discovery deadline. EagleView is not required to produce a witness for the
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`topics which were untimely noticed.
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`As to the earlier discovery requests, Nearmap has not shown it made reasonable efforts to
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`meet and confer on this issue. The local rules require parties to “make reasonable efforts to
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`resolve a discovery dispute” before filing a discovery motion.14
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`At minimum, those efforts must include a prompt written communication sent to
`the opposing party:
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`(A) identifying the discovery disclosure or request(s) at issue, the response(s), and
`specifying why those responses or objections are inadequate, and;
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`10 See DUCivR 30-2.
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`11 (See Ex. 6 to Mot., Pls.’ Objs. to Nearmap’s Notice of Dep. 1, Doc. No. 123-6.)
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`12 (See Ex. 4 to Mot., Nearmap’s Suppl. Notice of Dep., Doc. No. 125-4 (sealed).)
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`13 (See Am. Scheduling Order 2, Doc. No. 99.)
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`14 DUCivR 37-1(a)(1).
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`3
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`Case 2:21-cv-00283-TS-DAO Document 151 Filed 11/07/22 PageID.2968 Page 4 of 4
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`(B) requesting to meet and confer, either in person or by telephone, and including
`suggested dates and times.15
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`Nearmap certified it complied with these requirements, referencing emails attached to the motion
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`and an October 14 phone call.16 However, these emails (including the email memorializing the
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`phone call) do not identify deficiencies in EagleView’s responses to earlier discovery requests—
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`indeed, they do not mention the earlier requests at all.17 Further, EagleView claims it first
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`learned Nearmap disputed the sufficiency of its earlier responses from Nearmap’s motion.18
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`Thus, Nearmap has not shown it raised this issue in a written communication to EagleView
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`before filing the motion, as required under the local rules.
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`CONCLUSION
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`Nearmap’s October 10, 2022 discovery requests and supplemental 30(b)(6) deposition
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`notice were untimely, and Nearmap has not demonstrated it made reasonable efforts to meet and
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`confer regarding earlier discovery requests. For these reasons, Nearmap’s motion is denied.
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`DATED this 7th day of November, 2022.
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`BY THE COURT:
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`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`15 DUCivR 37-1(a)(2).
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`16 (See Mot. 3, Doc. No. 123; Exs. 8 and 9 to Mot., Doc. Nos. 123-8, 123-9.)
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`17 (See Exs. 8 and 9 to Mot., Doc. Nos. 123-8, 123-9.)
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`18 (Opp’n 3, Doc. No. 138.)
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`4
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