Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5805 Page 1 of 16
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`Juliette P. White, USB #9616
`PARSONS BEHLE & LATIMER
`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Facsimile: 801.536.6111
`JWhite@parsonsbehle.com
`ecf@parsonsbehle.com
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`Attorney for Plaintiffs
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`EAGLE VIEW TECHNOLOGIES
`INC., PICTOMETRY
`INTERNATIONAL CORP.,
`Plaintiffs,
`vs.
`NEARMAP US, INC.,
`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
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`PLAINTIFFS’ REPLY TO
`NEARMAP’S OPPOSITION TO,
`AND IN FURTHER SUPPORT OF,
`THEIR MOTION FOR LEAVE TO
`FILE AN AMENDED COMPLAINT
`OR, IN THE ALTERNATIVE, TO
`CONSOLIDATE CASES
`REDACTED VERSION
`Case No. 2:21-cv-00283-TS-DAO
`The Honorable Ted Stewart
`Magistrate Judge Daphne A. Oberg
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5806 Page 2 of 16
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`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION ...............................................................................................................1
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`ARGUMENT .......................................................................................................................3
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`A.
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`B.
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`C.
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`D.
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`EagleView Timely Moved To Amend. ....................................................................3
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`Uniting EagleView’s Claims In A Single Case Is The Most Efficient Way To
`Proceed. ....................................................................................................................6
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`EagleView Is Not “Circumventing” The Court’s Prior Denial Of
`Consolidation. ..........................................................................................................9
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`EagleView’s Amendment Is Not Futile. ................................................................10
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`III.
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`CONCLUSION ..................................................................................................................11
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5807 Page 3 of 16
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Anderson v. PAR Elec. Contractors, Inc.,
`318 F.R.D. 640 (D. Kan. 2017)..................................................................................................8
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`Aten Int’l Co., Ltd. v. Emine Tech. Co., Ltd.,
`No. SACV 09-0834, 2010 WL 1462110 (C.D. Cal. April 12, 2010) ........................................8
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`Federal Insurance Co. v. Gates Learjet Corp.,
`823 F.2d 383 (10th Cir. 1987) ...................................................................................................5
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`Hom v. Squire,
`81 F.3d 969 (10th Cir. 1996) .....................................................................................................5
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`WiAV Networks, LLC v. Hewlett-Packard Co.,
`No. C 10-03448, 2010 WL 11484493 (N.D. Cal. Dec. 17, 2010) .............................................6
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`Zisumbo v. Ogden Reg’l Med. Ctr.,
`801 F.3d 1185 (10th Cir. 2015) .................................................................................................3
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`Federal Statutes
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`35 U.S.C. § 299 ..............................................................................................................................10
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5808 Page 4 of 16
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`EagleView submits this reply in further support of its Motion for Leave to File an
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`Amended Complaint or, in the Alternative, to Consolidate Cases (Dkt. 155) (“Motion”) and in
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`response to Nearmap’s opposition (Dkt. 175).
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`I.
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`INTRODUCTION
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`EagleView should be granted leave to file an amended complaint, or alternatively, this
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`case should be consolidated with the GAF Case.1 Remarkably, Nearmap cries prejudice when it
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`is EagleView who is prejudiced by the theft of trade secrets and additional patent infringement,
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`which it newly discovered through this litigation. The record shows EagleView timely moved
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`for leave to amend after discovery of the relevant facts, and well within the time allowed by the
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`scheduling orders in this case. In fact, EagleView’s motion for leave was timely even before the
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`Court’s recent extensions to the case schedule. Dkt. 99 at 2 (prior scheduling order setting a
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`November 18, 2022 deadline). The deadline to amend is set near the end of discovery for a
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`reason, as it is well understood discovery may reveal additional misconduct necessitating
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`amendment of the pleadings in a complex case like this. Nearmap has not shown that it would
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`be unduly prejudiced by the amendment. Although the impact on this case would be significant,
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`that is a direct result of Nearmap’s infringement and theft, and its efforts to conceal the same.
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`Moreover, any purported prejudice resulting from trying the additional claims in this case as
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`opposed to one or more subsequent case(s) is outweighed by the efficiency gains. In
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`complaining of prejudice, Nearmap fails to acknowledge the alternative reality—i.e., the
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`1 Eagle View Technologies, Inc. v. GAF Materials LLC, Case No. 2:22-cv-00215, also pending
`before this Court.
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`1
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5809 Page 5 of 16
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`unavoidable burden on this Court, EagleView, and Nearmap if forced to try multiple cases
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`serially.
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`EagleView’s patent infringement claims against QuickMeasure reports and the software
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`used to create them should all be disposed of in a single case. Currently, those claims are
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`fragmented across two cases against two different defendants. By its Motion, EagleView seeks
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`to unite its QuickMeasure-related claims in a single action and thus avoid the inefficiencies of
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`serial, piecemeal litigation.
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`EagleView’s claims against Nearmap should also be disposed of in a single case.
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`EagleView learned of these claims because of this case—namely, through the extensive
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`documents Nearmap produced in this case, which Nearmap continues to produce and EagleView
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`continues to review—and that just further proves that they are related to the claims that are
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`already pending. Importantly, unless the Protective Order is amended, it could complicate
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`EagleView’s ability to use the material it learned in this case in another case. Again, it is more
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`efficient to litigate these claims against Nearmap in a single case, rather than require EagleView
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`to file a separate action.
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`Nearmap’s additional arguments also fail. EagleView is not attempting to “circumvent”
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`the Court’s prior order denying pretrial consolidation of the Nearmap and GAF Cases, which
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`was decided based on limited and plainly incorrect facts—again, facts that were squarely in
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`Nearmap’s and GAF’s possession, but not EagleView’s or this Court’s. Based on the current
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`record, which shows that Nearmap’s and GAF’s infringement arise from a single series of
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`transactions or events, complete consolidation is appropriate. And Nearmap’s cursory and
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5810 Page 6 of 16
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`inaccurate arguments relating to EagleView’s identification of trade secrets and eligibility of the
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`patents under § 101 make clear that amendment is not futile.
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`For all of the reasons set forth in its briefing, EagleView’s Motion should be granted.
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`II.
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`ARGUMENT
`EagleView Timely Moved To Amend.
`A.
`As explained, EagleView has only recently unraveled the truth behind Nearmap’s and
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`GAF’s roles with respect to QuickMeasure reports. Mot. at 3-6. And it was also discovery
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`produced in this case that tipped EagleView off to Nearmap’s theft of trade secrets and further
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`patent infringement. Moreover, EagleView still does not have full discovery on Nearmap’s
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`accused
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` product—Nearmap’s production of documents is ongoing even today.
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`EagleView also does not have full discovery on all products that perform similarly to the
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`Accused Products. In October 2022, EagleView was forced to file a motion to compel (Dkt.
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`111), which is still pending, because Nearmap continues to resist providing discovery on the full
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`scope of accused products. In other words, to the extent additional products exist that are similar
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`in functionality to the Accused Products but that Nearmap refuses to produce without a court
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`order, discovery will be delayed yet again (like it was with EagleView’s discovery of
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`).
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`EagleView timely moved to amend. The relevant question is whether there has been
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`undue delay—there plainly has not. Denial of leave to amend is appropriate only “when the
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`party filing the motion has no adequate explanation for the delay;” allegations of purported
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`“lateness” do not “justify denying an amendment.” Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d
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`1185, 1195 (10th Cir. 2015). EagleView’s explanation—that discovery is ongoing and new facts
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`are continually emerging—is more than adequate. Notably, the parties have consistently agreed
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5811 Page 7 of 16
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`that the deadline to amend pleadings falls after the close of fact discovery (e.g., Dkt. 56) for
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`good reason, as it is obvious discovery might reveal evidence supporting additional causes of
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`action or other grounds for amendment in a case like this. Nearmap’s implied argument that
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`EagleView should have iteratively petitioned the Court for leave to amend at the exact moment
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`each new claim crystalized is both inaccurate and practically absurd.
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`Nearmap’s arguments that EagleView has long been in possession of the relevant
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`information should be rejected. First, EagleView is not “in possession” of Nearmap’s source
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`code. EagleView is able to inspect it, during business hours, upon coordinating the dates with
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`Nearmap. Moreover, importantly, Nearmap’s interrogatory responses a month after its purported
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`January 2022 source code production
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`. Ex. J (2/18/2022 Interrogatory Responses) at 8-10. By
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`condemning EagleView for not appreciating
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`—Nearmap is effectively
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`arguing that EagleView should have caught Nearmap sooner.
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`Second, Nearmap argues that documents EagleView relies on were produced in May
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`2022. But that does not mean EagleView was able to instantly review and appreciate Nearmap’s
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`substantial production. Nor was Nearmap’s production complete in May 2022. Rather,
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`discovery is an ongoing process, and in the course of that process, EagleView learned of its new
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`claims. Upon learning of new information, EagleView worked diligently to evaluate its new
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`claims and prepare a lengthy amended complaint.
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`Third, Nearmap argues that EagleView relies on public documents for some of the new
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`patents. But there is no requirement that EagleView cite all of its evidence in a complaint.
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5812 Page 8 of 16
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`EagleView’s infringement assertion is based on Nearmap’s confidential documents produced in
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`discovery, even if they are not cited. Thus, this is not a claim that EagleView reasonably could
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`have brought at the inception of this case.
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`Moreover, Nearmap points to no requirement that EagleView was required to serially
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`amend its complaint as it learned about each new piece of evidence. Discovery is not complete,
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`and, just last week, Nearmap produced more relevant and directly responsive information about
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` and finally produced a SkyMeasure report,
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`. Indeed, recent and voluminous productions continue to shed light on EagleView’s
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`amendments. See Decl. of Aaron Morris ¶¶ 5-7. That the initial hint of certain claims may have
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`come earlier than others does not mean that EagleView unduly delayed in bringing its proposed
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`amendment. EagleView has an obligation to investigate and confirm that there is a good faith
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`basis for bringing any claim, and did so in this case before seeking leave to amend.
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`Nearmap’s cases are distinguishable. Unlike Federal Insurance Co. v. Gates Learjet
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`Corp., 823 F.2d 383 (10th Cir. 1987), EagleView did not have “documents from which it could
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`have discovered and asserted the [claims]” at the time the lawsuit was filed. To the contrary, the
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`operation of Nearmap’s products is confidential, and
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`. See Mot. at 5-6. And unlike Hom v. Squire, 81 F.3d
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`969, 973 (10th Cir. 1996), where the plaintiff sought to amend two years after the deadline for
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`amending pleadings and two months before trial, EagleView’s Motion was filed before the
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`deadline, and no trial date has been set in this case.
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`Because EagleView acted timely and diligently, the undue delay factor does not warrant
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`denial of its Motion.
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5813 Page 9 of 16
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`B.
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`Uniting EagleView’s Claims In A Single Case Is The Most Efficient Way To
`Proceed.
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`The effect of EagleView’s proposed amendment on this case is greatly outweighed by the
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`inefficiency and complexity of the alternative. Adding EagleView’s new claims and GAF as a
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`party here is manageable. The Court can, for example, set new case deadlines for the parties to
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`exchange contentions on the newly added patents and allow claim construction to proceed on a
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`single track rather than piecemeal.2 See WiAV Networks, LLC v. Hewlett-Packard Co., No. C
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`10-03448, 2010 WL 11484493, at *4 (N.D. Cal. Dec. 17, 2010) (finding changes to the schedule
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`would not “create prejudice sufficient to deny leave to amend”). In fact, under a new, unified
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`schedule, GAF’s contention exchanges can occur at the same time as Nearmap’s exchanges on
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`newly asserted patents, after which all of EagleView’s claims will be in sync.
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`These exchanges would not be prejudicial or constitute duplicative work, since Nearmap
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`would have to serve such contentions regardless of whether EagleView brings these claims in
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`this case or a new case. In contrast, the amount of duplication and fragmented litigation that
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`would result from keeping the Nearmap and GAF Cases separate, and requiring EagleView to
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`bring its additional claims against Nearmap in yet a third proceeding, is untenable. See also Mot.
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`at 9-11. For example:
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`•
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`the Court would have to hold multiple claim construction hearings on the same or similar
`patents and construe those patents multiple times,
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`2 Nearmap has also previously expressed concerns that this litigation is “casting a cloud on
`Nearmap’s legitimate business in the U.S.” Dkt. 89 at 7. Bringing all claims in one action—
`which will be disposed of sooner than serially filed litigations—would bring a swifter resolution
`to Nearmap. Not to mention, Nearmap itself sought to expand the scope of this case by adding a
`patent misuse defense, which would have engendered delay and an expansion of discovery.
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5814 Page 10 of 16
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`the parties would have to take duplicative depositions in multiple proceedings (e.g.,
`deposing a corporate representative for GAF in the Nearmap case and then again in the
`GAF case),
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`the parties would have to subpoena the same third parties on similar issues in multiple
`proceedings,
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`the parties would have to exchange multiple rounds of expert reports on overlapping
`issues, and take multiple duplicative expert depositions,
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`the Court would have to entertain multiple rounds of summary judgment motions on the
`same or similar issues,
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`the Court would have to hold two separate trials on the same QuickMeasure product, and
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`the Court would have to hold two separate trials on Nearmap.
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`Throughout those stages, similar factual and legal questions on issues such as invalidity and
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`infringement would be litigated repeatedly. Not to mention, litigation of substantive issues
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`might be complicated by satellite litigation about whether the Court’s prior rulings on an issue
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`have preclusive effect or operate as law of the case and how they limit or inform arguments in
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`the next round of litigation. For example, would the Court’s claim constructions in the Nearmap
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`Case bind EagleView, even though EagleView will not have the benefit of GAF’s positions at
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`the time claim construction is argued? Can GAF re-argue a non-infringement position even if
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`the same argument is already presented by Nearmap?
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`Nearmap’s arguments fail to account for this highly inefficient alternative scenario and
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`thus do not show that Nearmap would be unduly prejudiced by EagleView’s amendment.
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`Nearmap complains of additional work that it would have to do to defend against new patents
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`(Opp. at 3-4), but if done in this case, Nearmap can reap the benefits of the overlap between the
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`new and existing claims. For example, instead of taking brand new depositions in a new case,
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`Nearmap could take supplemental depositions, if necessary, to cover any additional areas newly
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5815 Page 11 of 16
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`implicated by EagleView’s new claims. As another example, Nearmap can serve a single expert
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`report that comprehensively addresses the technology and asserted patents, instead of two
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`repetitive reports that address different subsets of patents.
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`Contrary to Nearmap’s characterization, there is no work that needs to be “redone.” No
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`one is asking Nearmap, for example, to re-serve invalidity or non-infringement contentions on
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`patents currently asserted. The fact that Nearmap must respond to contentions “on new products
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`and new patents” (Opp. at 3) is nothing more than the work of “defending a lawsuit.” Aten Int’l
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`Co., Ltd. v. Emine Tech. Co., Ltd., No. SACV 09-0834, 2010 WL 1462110, at *4 (C.D. Cal.
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`April 12, 2010). Nearmap will either have to do this work in a new case, or in the current
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`case. Thus, having to do that work certainly “doesn’t rise to the level of prejudice required to
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`prohibit [EagleView] from amending [its] complaint.” Id. In fact, courts “frequently” allow new
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`patents to be added to existing lawsuits. Id. (collecting cases).
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`Thus, Nearmap’s complaints do not show undue prejudice that would warrant denial of
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`EagleView’s Motion. See Anderson v. PAR Elec. Contractors, Inc., 318 F.R.D. 640, 645 (D.
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`Kan. 2017) (“While any amendment invariably causes some practical prejudice, undue prejudice
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`means that the amendment would work an injustice to the defendants.” (internal quotations
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`omitted)). In fact, permitting EagleView’s amendment would be a more just outcome for
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`Nearmap, and minimizes the inefficiency and burden on the parties and the Court.3
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`3 To the extent Nearmap is unhappy that it has already taken some depositions of witnesses
`relevant to EagleView’s new claims, that is partly a problem of Nearmap’s making. The parties
`recently briefed multiple motions relating to the case schedule and deposition scheduling. At the
`start of those discussions, EagleView informed Nearmap of its intent to seek leave to amend the
`complaint and proposed an interim postponement of depositions. Dkt. 123-9 at 2 (10/12/2022
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5816 Page 12 of 16
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`C.
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`EagleView Is Not “Circumventing” The Court’s Prior Denial Of
`Consolidation.
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`Again, EagleView only gradually uncovered the intersectionality between the Nearmap
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`and GAF Cases—intersectionality always known by Nearmap and GAF. Mot. at 3-6. When
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`EagleView previously moved for pretrial consolidation, the request was based on overlapping
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`patents and efficiency gains from coordinating schedules and proceedings like claim
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`construction. See Dkt. 60. EagleView did not know then that part of its infringement claims
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`arose out of the same series of transactions or events. Now, finally, EagleView and the Court
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`have a fuller picture. EagleView is not trying to circumvent the Court’s prior ruling, nor is it
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`seeking reconsideration. Rather, EagleView is asking for different relief—leave to amend, or
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`alternatively complete consolidation—on different facts.4
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`The prior consolidation motion had no impact on EagleView’s ability to accuse Nearmap
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`of infringement based on
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`. That EagleView has supplemented its infringement
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`contentions, and now seeks to amend its complaint, to specifically identify
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` is not cabined
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`by this Court’s prior ruling on consolidation.
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`Nearmap’s argument about claim-splitting (Opp. at 7) also fails. EagleView’s agreement
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`to dismiss the GAF Case if permitted to add GAF here (Mot. at 1) would resolve any concerns
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`about claim-splitting. And again, adding GAF to this case is not an “end-run” around the Court’s
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`Email from L. Mao). Nearmap declined and elected to press forward with depositions
`notwithstanding the uncertainty about the scope of the case.
`4 To the extent the Court finds that EagleView is effectively asking for reconsideration,
`reconsideration is warranted based on the new evidence. See Opp. at 7 (acknowledging “new
`evidence previously unavailable” is grounds warranting reconsideration (citing Servants of
`Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000))).
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5817 Page 13 of 16
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`prior ruling. To the contrary, EagleView’s amendment to add GAF confirms the changed
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`situation since the prior consolidation motion. Previously, Nearmap argued that the Nearmap
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`and GAF Cases could not be consolidated for trial under 35 U.S.C. § 299. Dkt. 63. EagleView’s
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`proposed amended complaint, however, explains—based on previously unknown information—
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`that § 299 is satisfied here based on Nearmap’s and GAF’s involved with QuickMeasure reports.
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`Dkt. 156 ¶ 3.
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`Thus, the Court’s prior denial of pretrial consolidation should not control the outcome
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`here. See also Mot. at 11.
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`EagleView’s Amendment Is Not Futile.
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`D.
`In a last-ditch effort to prevent EagleView’s amendment, Nearmap argues that the new
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`claims are futile. Not so. Nearmap’s cursory and misleading analysis of EagleView’s claims do
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`not show that leave should be denied on the basis of futility.
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`First, Nearmap incorrectly argues that EagleView has not identified the misappropriated
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`trade secrets with enough specificity. Opp. at 8-9. But Nearmap quotes the wrong paragraph—
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`¶ 59, where EagleView describes the general categories of trade secrets it owns and protects,
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`instead of ¶ 66, where specific circumstances of misappropriation are described. The specific
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`trade secrets are identified in ¶ 66—for example,
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`Moreover, EagleView’s allegations refer to
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`, which Nearmap was able to identify. Opp. at 2 (arguing
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`EagleView’s trade secret claims are based on “a single email”). These allegations are more than
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`enough to alert Nearmap to the parameters of EagleView’s misappropriation claims.
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5818 Page 14 of 16
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`Second, Nearmap argues the new patent claims are ineligible under § 101. But
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`Nearmap’s one-paragraph argument fails to perform any detailed § 101 analysis of any of the
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`new patents. For some patents, Nearmap relies on GAF’s motion to dismiss, which remains
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`pending and which EagleView rebutted in its opposition brief. For the other two patents,
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`Nearmap provides only a conclusory assertion of an abstract idea and lack of inventive concept.
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`This falls far short of the showing needed for dismissal of patent claims on § 101 grounds.
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`Notably, Nearmap already challenged two of EagleView’s currently asserted patents on § 101
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`grounds, and elected not to challenge the others at all, and the Court rejected that challenge. Dkt.
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`50. Nearmap does not explain why the outcome would be different here.
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`Thus, Nearmap has not shown that amendment should be denied on futility grounds.
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`III. CONCLUSION
`For the reasons set forth above, in its motion, and in its reply to GAF, EagleView
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`respectfully requests that the Court grant EagleView leave to file an amended complaint, or
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`alternatively order that the Nearmap and GAF Cases are consolidated.
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`Dated: December 7, 2022
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`/s/ Juliette P. White
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`Juliette P. White
`Parsons Behle & Latimer
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`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Fax: 801.536.6111
`JWhite@parsonsbehle.com
`ecf@parsonsbehle.com
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5819 Page 15 of 16
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`12
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`L. Kieran Kieckhefer
`SHEARMAN & STERLING LLP
`535 Mission Street, 25th Floor
`San Francisco, CA 94105
`Telephone: 415.616.1100
`Fax: 415.616.1339
`kieran.kieckhefer@shearman.com
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`Matthew G. Berkowitz
`Patrick Colsher
`Lillian J. Mao
`Yue (Joy) Wang
`SHEARMAN & STERLING LLP
`1460 El Camino Real, 2nd Floor
`Menlo Park, CA 94025
`Telephone: 650.838.3600
`Fax: 650.838.3699
`matthew.berkowitz@shearman.com
`patrick.colsher@shearman.com
`lillian.mao@shearman.com
`joy.wang@shearman.com
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`Eric S. Lucas
`SHEARMAN & STERLING LLP
`599 Lexington Ave.
`New York, NY 10022
`Telephone: 212.838.4955
`Fax: 646.848.4955
`eric.lucas@shearman.com
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`Attorneys for Plaintiffs Eagle View
`Technologies, Inc. and Pictometry
`International Corp.
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`Case 2:21-cv-00283-TS-DAO Document 179 Filed 12/07/22 PageID.5820 Page 16 of 16
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`CERTIFICATION OF WORD COUNT
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`I, Juliette P. White, certify that this PLAINTIFFS’ REPLY TO NEARMAP’S
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`OPPOSITION TO, AND IN FURTHER SUPPORT OF, THEIR MOTION FOR LEAVE TO
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`FILE AN AMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO CONSOLIDATE
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`CASES contains 3,096 words and complies with DUCivR 7-1(a)(4).
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`/s/ Juliette P. White
`Juliette P. White
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`Attorney for Plaintiffs
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on the 7th day of December, 2022, I caused to be electronically filed
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`and served the foregoing PLAINTIFFS’ REPLY TO NEARMAP’S OPPOSITION TO, AND IN
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`FURTHER SUPPORT OF, THEIR MOTION FOR LEAVE TO FILE AN AMENDED
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`COMPLAINT OR, IN THE ALTERNATIVE, TO CONSOLIDATE CASES with the Clerk of
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`the Court using the Court’s electronic filing system, which sent notification of such filing to all
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`attorneys listed on the docket.
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`/s/ Juliette P. White
`Juliette P. White
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`Attorney for Plaintiffs
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