Case 2:21-cv-00283-TS-DAO Document 218 Filed 01/06/23 PageID.6636 Page 1 of 6
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`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`MEMORANDUM DECISION AND
`ORDER DENYING WITHOUT
`PREJUDICE MOTIONS TO SEAL
`(DOC. NOS. 102, 106, 109, 119, 131)
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`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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`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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`In this patent infringement case, Defendant Nearmap US, Inc. and Plaintiffs Eagle View
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`Technologies, Inc. and Pictometry International Corp. (collectively, “EagleView”) have filed
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`motions1 to seal certain documents filed in connection with Nearmap’s Motion for Leave to File
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`First Amended Answer and Counterclaims.2 Because the motions to seal fail to articulate a
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`significant interest outweighing the presumption of public access, they are denied without
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`prejudice. However, the parties have leave to file a new motion to seal within fourteen days.
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`LEGAL STANDARDS
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`“The records of the court are presumptively open to the public,” and sealing court
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`documents is “highly discouraged.”3 However, the right of access to judicial records is not
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`absolute.4 “[T]he presumption in favor of access to judicial records may be overcome where
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`1 (Doc. Nos. 102, 106, 109, 119, 131.)
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`2 (Doc. No. 101.)
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`3 DUCivR 5-3(a)(1).
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`4 Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012).
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`countervailing interests heavily outweigh the public interests in access.”5 “The burden is on the
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`party seeking to restrict access to show some significant interest that outweighs the
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`presumption.”6
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`ANALYSIS
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`The proposed sealed documents relate to a settlement of separate litigation between
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`EagleView and Verisk Analytics, Inc. and Xactware Solutions, Inc. (collectively, “Verisk”).
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`Nearmap filed the Verisk settlement agreement and settlement negotiation emails as exhibits to
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`Nearmap’s proposed amended answer, which seeks to add a patent misuse defense. Nearmap
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`filed additional settlement negotiation emails as exhibits to its reply in support of the motion to
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`amend. The parties seek to seal (1) the settlement agreement and negotiation emails,7 (2) the
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`portions of Nearmap’s proposed amended answer which describe the settlement and
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`negotiations,8 and (3) the portions of EagleView’s opposition and Nearmap’s reply to the motion
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`to amend which describe the settlement and negotiations.9
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`Nearmap moved to seal these documents solely because EagleView designated the
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`settlement agreement and emails as “attorneys’ eyes only” (AEO).10 EagleView argues these
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`5 Id. (internal quotation marks omitted).
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`6 Id. (internal quotation marks omitted).
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`7 (Exs. 2 & 3 to Def.’s Proposed Am. Answer and Countercls., Doc. Nos. 103-3 (sealed), 103-4
`(sealed); Ex. 9 to Def.’s Reply in Support of Mot. for Leave to File First Am. Answer and
`Countercls., Doc. No. 120-2 (sealed).)
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`8 (Def.’s Proposed Am. Answer and Countercls., Doc. Nos. 101-1 (redacted), 103-1 (sealed).)
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`9 (Pls.’ Opp’n to Def.’s Mot. for Leave to File First Am. Answer and Countercls., Doc. Nos. 107
`(redacted), 110 (sealed); Def.’s Reply in Support of Mot. for Leave to File First Am. Answer and
`Countercls., Doc. Nos. 118 (redacted), 120 (sealed).)
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`10 (See Nearmap Mots. to Seal, Doc. Nos. 102, 119.)
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`documents warrant sealing for two reasons.11 First, EagleView notes the settlement agreement
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`itself contains a confidentiality clause, wherein EagleView and Verisk agreed the settlement
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`terms and related documents would remain confidential.12 Second, EagleView argues disclosure
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`of the settlement agreement would harm EagleView’s competitive standing by “providing its
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`competitors access to highly competitive intelligence and other terms that both EagleView and
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`Verisk agreed would remain confidential.”13 No opposition to the motions to seal has been filed.
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`The Tenth Circuit has held a confidentiality provision in a settlement agreement or
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`contract is insufficient, on its own, to warrant sealing.14 Further, “where documents are used to
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`determine litigants’ substantive legal rights, a strong presumption of access attaches.”15 In
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`Colony Insurance Company v. Burke,16 the Tenth Circuit denied a motion to seal confidential
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`settlement agreements where “[t]he parties themselves placed these settlements at the center of
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`this controversy.”17 The court explained “[t]he parties must articulate a real and substantial
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`11 (See EagleView Mots. to Seal, Doc. Nos. 106, 109, 131.)
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`12 (E.g., Doc. No. 106 at 2.)
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`13 (E.g., id.)
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`14 Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160 (10th Cir. 2019) (“The interest in
`preserving the confidentiality of the contract does not necessarily constitute a sufficiently
`substantial justification.”); Colony Ins. Co., 698 F.3d at 1241 (denying a motion to seal where
`“[t]he parties’ only stated reason for filing these documents under seal [was] that they involve[d]
`the terms of confidential settlement agreements and/or they were filed under seal in the district
`court”); see also Liberty Mut. Fire Ins. Co. v. Michael Baker Int’l, Inc., No. 2:19-cv-00881, 2022
`U.S. Dist. LEXIS 85038, at *4 (D. Utah May 10, 2022) (unpublished) (“[S]imply citing a
`confidentiality provision in a settlement or contract does not warrant sealing.”).
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`15 Colony Ins. Co., 698 F.3d at 1241–42.
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`16 698 F.3d 1222.
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`17 Id. at 1241.
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`interest that justifies depriving the public of access to the records that inform our decision-
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`making process.”18 The court found the parties failed to meet this “heavy burden” where
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`“[n]either party has submitted any specific argument or facts indicating why the confidentiality
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`of their settlement agreements outweighs the presumption of public access.”19
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`Likewise, the parties here have placed the outcome of the Verisk litigation, and
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`documents related to it, at issue in this case. First, Nearmap has moved to amend its answer to
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`add a proposed patent misuse defense based on the Verisk settlement.20 The proposed sealed
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`documents include a substantial portion of Nearmap’s proposed amended answer—indeed, the
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`majority of the allegations supporting Nearmap’s proposed patent misuse defense would be
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`sealed if the motions to seal are granted. This means, if Nearmap’s motion to amend is granted,
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`a portion of the operative pleadings in this case would be sealed. Second, although EagleView
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`opposes Nearmap’s proposed amendment, EagleView itself has also placed the Verisk litigation
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`at issue in this case. EagleView’s complaint refers to the “successful litigation against Xactware
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`Solutions, Inc. and Verisk Analytics, Inc.” eight times in support of EagleView’s claims,21 and
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`EagleView attached a court order from that case as an exhibit to its complaint.22 Where both
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`parties have placed the Verisk litigation at issue, and the proposed sealed documents include
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`18 Id. at 1242 (internal quotation marks omitted).
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`19 Id. (internal quotation marks omitted).
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`20 (See Mot. for Leave to File First Am. Answer and Countercls., Doc. No. 101.)
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`21 (Compl. ¶¶ 53, 72, 91, 114, 135, 162, 182, 200, Doc. No. 2.) The complaint was filed in May
`2021, after a judgment in EagleView’s favor in the Verisk litigation. The Verisk settlement
`occurred in November 2021 after the judgment was appealed.
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`22 (Ex. 9 to Compl., Doc. No. 2-10.)
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`portions of Nearmap’s proposed amended pleadings, a strong presumption of public access
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`attaches.
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`EagleView has not met its burden to articulate a real and substantial interest which
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`outweighs this strong presumption. EagleView argues disclosure of the settlement agreement
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`would harm EagleView’s competitive standing, but it does not explain how it would be harmed
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`if the settlement agreement and related documents were made public. The bare assertion that
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`EagleView will be harmed is insufficient to overcome the presumption of public access.
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`Likewise, the mere fact that EagleView and Verisk agreed the settlement would remain
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`confidential is insufficient.23 On this record, EagleView has failed to identify a substantial
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`interest which would justify depriving the public of access to the documents at issue.
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`Although the present motions to seal are deficient, EagleView may be able to articulate
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`an interest outweighing the presumption of public access if given further opportunity to do so.
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`Accordingly, the motions to seal are denied without prejudice, with leave to file a new motion
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`which addresses the deficiencies set forth above.
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`CONCLUSION
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`The motions to seal are DENIED without prejudice. Any party seeking to maintain the
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`documents at issue under seal must file a new motion addressing the deficiencies outlined above
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`23 See, e.g., Liberty Mut. Fire Ins. Co., 2022 U.S. Dist. LEXIS 85038, at *4 (“[S]imply citing a
`confidentiality provision in a settlement or contract does not warrant sealing.”).
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`within fourteen days. If no new motion is filed, these documents will be unsealed without
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`further notice.
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`DATED this 6th day of January, 2023.
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`BY THE COURT:
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`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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