`EAGLE VIEW TECHNOLOGIES, INC.; and
`PICTOMETRY INTERNATIONAL CORP.,
`
`
`Plaintiffs,
`
`
`v.
`
`NEARMAP US, INC.; NEARMAP
`AUSTRALIA PTY LTD; and
`NEARMAP LTD,
`
`
`Defendants.
`
`
`MEMORANDUM DECISION AND
`ORDER GRANTING IN PART
`PLAINTIFFS’ SHORT FORM MOTION
`TO COMPEL CONTINUED
`DEPOSITION OF TONY AGRESTA
`(DOC. NO. 196) AND GRANTING
`PLAINTIFFS’ MOTION TO
`SUPPLEMENT THE RECORD
`(DOC. NO. 222)
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17895 Page 1 of 9
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
`
`
`
`
`In this patent infringement case, Plaintiffs Eagle View Technologies, Inc. and Pictometry
`
`International Corp. (collectively, “EagleView”) filed a motion to compel Defendant Nearmap
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`US, Inc.1 to make Tony Agresta available for a continued deposition.2 EagleView later moved
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`to supplement the record in support of this motion.3 The court held a hearing on the motion to
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`compel on January 11, 2023.4 For the reasons explained below, the motion to supplement is
`
`
`1 At the time this motion was filed and briefed, Nearmap US, Inc. was the only defendant.
`EagleView has since filed an amended complaint adding claims against defendants Nearmap
`Australia Pty Ltd and Nearmap Ltd. (See Doc. No. 274.) Because these new defendants were
`not involved in this motion, Nearmap US, Inc. is referred to simply as “Nearmap” in this order.
`
`2 (Pls.’ Short Form Disc. Mot. to Compel Cont’d Dep. of Tony Agresta (“Mot. to Compel”),
`Doc. No 196.)
`
`3 (Pls.’ Mot. for Leave to Suppl. the Record in Support of Mot. to Compel (“Mot. to Suppl.”),
`Doc. No. 222.)
`
`4 (See Minute Entry, Doc. No. 229.)
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`
`
`1
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`

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`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17896 Page 2 of 9
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`granted, the motion to compel is granted in part, and Nearmap is ordered to make Mr. Agresta
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`available for a continued deposition of no more than ninety minutes regarding the documents
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`produced from his custodial file on or after December 7, 2022.
`
`BACKGROUND
`
`EagleView brought this action against Nearmap, alleging infringement of eight patents
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`related to rooftop aerial measurement technology.5 During discovery, the parties agreed that
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`each party would be entitled to twenty-five hours of Rule 30(b)(6) testimony, and that each
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`witness’s combined corporate and individual depositions would be limited to one seven-hour day
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`(except for Nearmap Chief Technology Officer Tom Celinski, who sat for two seven-hour
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`days).6
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`Mr. Agresta is a member of Nearmap’s executive committee.7 He was deposed in both
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`his individual capacity and as a Rule 30(b)(6) designee on December 8, 2022.8 At 11:06 p.m. on
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`December 7, the night before the deposition, Nearmap produced 1,025 of Mr. Agresta’s custodial
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`files totaling nearly 9,000 pages.9 EagleView lodged an objection at the beginning of Mr.
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`Agresta’s deposition and indicated it would hold the deposition open due to this production, but
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`proceeded with the deposition.10 EagleView deposed Mr. Agresta for seven hours—4.5 hours in
`
`
`5 (Compl. ¶¶ 1–2, Doc. No. 2.)
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`6 (See Mot. to Compel 2, Doc. No. 196; Opp’n to Mot. to Compel 1, Doc. No. 209.)
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`7 (See Opp’n to Mot. to Compel 1, Doc. No. 209.)
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`8 (See Mot. to Compel 2, Doc. No. 196.)
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`9 (See id. at 1–2.)
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`10 (See id. at 2.)
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`2
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`

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`a Rule 30(b)(6) capacity and 2.5 hours in an individual capacity.11 EagleView then requested a
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`continued deposition of Mr. Agresta of up to four hours, limited to “the late-produced documents
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`and issues arising therefrom.”12 Nearmap declined, and EagleView filed the instant motion to
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`compel.13
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`On January 2, 2023, after the motion to compel was filed, Nearmap produced an
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`additional 2,500 pages of documents from Mr. Agresta’s custodial file.14 On January 11, shortly
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`before the hearing on the motion to compel, EagleView moved to supplement the record, arguing
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`the January 2 production provided additional support for the motion to compel.15
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`LEGAL STANDARDS
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`Rule 30(d)(1) provides: “Unless otherwise stipulated or ordered by the court, a deposition
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`is limited to 1 day of 7 hours.”16 But “[t]he court must allow additional time consistent with
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`Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person,
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`or any other circumstance impedes or delays the examination.”17
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`
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`11 (See id.)
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`12 (See id.)
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`13 (See id.)
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`14 (See Mot. to Suppl., Doc. No. 222.)
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`15 (See id.)
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`16 Fed. R. Civ. P. 30(d)(1).
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`17 Id.
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`3
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`Under Rule 26(b)(1), the scope of discovery encompasses “any nonprivileged matter that
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`is relevant to any party’s claim or defense and proportional to the needs of the case.”18 Rule
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`26(b)(2) provides:
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`[T]he court must limit the frequency or extent of discovery otherwise allowed by
`these rules or by local rule if it determines that: (i) the discovery sought is
`unreasonably cumulative or duplicative, or can be obtained from some other source
`that is more convenient, less burdensome, or less expensive; (ii) the party seeking
`discovery has had ample opportunity to obtain the information by discovery in the
`action; or (iii) the proposed discovery is outside the scope permitted by Rule
`26(b)(1).19
`
`
`ANALYSIS
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`1. Motion to Supplement the Record
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`EagleView’s motion to supplement the record20 is addressed first. Although EagleView
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`filed this motion only hours before the hearing, Nearmap also filed an opposition before the
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`hearing,21 and Nearmap indicated during the hearing that it did not need any further opportunity
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`to brief this issue.
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`EagleView seeks to present additional documents in support of the motion to compel
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`which Nearmap produced after the motion was filed.22 In opposition, Nearmap argues these
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`documents do not support EagleView’s position on the merits of the motion to compel, but
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`Nearmap offers no reason why the documents should not be considered.23 Therefore,
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`18 Fed. R. Civ. P. 26(b)(1).
`
`
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`19 Fed. R. Civ. P. 26(b)(2)(C).
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`20 (Doc. No. 222.)
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`21 (See Opp’n to Mot. to Suppl., Doc. No. 225.)
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`22 (See Mot. to Suppl., Doc. No. 222.)
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`23 (See Opp’n to Mot. to Suppl., Doc. No. 225.)
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`4
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`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17899 Page 5 of 9
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`EagleView’s motion to supplement is granted, and the court considers these additional
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`documents.
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`2. Motion to Compel
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`EagleView seeks to compel an additional four-hour deposition of Mr. Agresta regarding
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`the documents Nearmap produced on or after December 7, 2022.24 EagleView contends the
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`December 7 production includes 900 “unique” documents, many of which are relevant and
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`material, including “documents bearing on issues related to direct, indirect, and willful
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`infringement.”25 EagleView provided three examples of documents it contends are relevant—
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`one produced on December 7 and two produced on January 2.26 EagleView contends it will
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`suffer prejudice if it is not permitted to examine Mr. Agresta about documents from these
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`productions, since EagleView had no opportunity to review them before his deposition.27
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`EagleView also asserts a continued deposition is warranted because it used only “2.5 hours of the
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`7 hours it otherwise was entitled to under Rule 30(b)(1).”28
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`In opposition, Nearmap argues a continued deposition is unwarranted because the
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`December 7 production was “a small fraction of the 35,000+ documents previously produced
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`from [Mr.] Agresta,” and roughly half are duplicates or near-duplicates of previously-produced
`
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`24 (See Mot. to Compel, Doc. No. 196.) Although the motion to compel addresses only the
`December 7 production, the motion to supplement addresses documents produced on January 2,
`after the motion to compel was filed.
`
`25 (Id. at 3.)
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`26 (See Ex. C to Mot. to Compel, Doc. No. 198-3 (sealed); Exs. B & C to Mot. to Supplement,
`Doc. Nos. 224-2 & 224-3 (sealed).)
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`27 (See Mot. to Compel 3, Doc. No. 196.)
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`28 (Id.)
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`5
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`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17900 Page 6 of 9
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`documents.29 Nearmap contends EagleView has not adequately explained how these documents
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`are materially new.30 Nearmap also notes it designated five other Rule 30(b)(6) witnesses on the
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`topics of “direct, indirect, and willful infringement,” and Mr. Agresta was not designated on
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`those topics.31 Nearmap argues EagleView could have asked other witnesses about the
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`documents during depositions taken after Mr. Agresta’s.32
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`EagleView has demonstrated a continued deposition of Mr. Agresta is warranted due to
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`Nearmap’s production of numerous documents from his custodial file on the eve of and after his
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`deposition. Given the number of documents and the timing of the production, EagleView had no
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`meaningful opportunity to review the documents before Mr. Agresta’s deposition. And even
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`according to Nearmap’s own estimate, only roughly half of this production was duplicative of
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`prior productions—meaning approximately half the documents were new. EagleView has also
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`demonstrated at least some of the new documents address matters relevant to its claims. For
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`example, the December 7 production included an email chain between Mr. Agresta and other
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`Nearmap employees discussing one of the accused products,33 which EagleView contends bears
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`on its infringement allegations.34 And the January 2 production includes a document outlining
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`development and marketing plans for several accused products—which also identifies Mr.
`
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`29 (Opp’n to Mot. to Compel 2, Doc. No. 209.)
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`30 (See id.)
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`31 (Id.)
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`32 (Id. at 2–3.)
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`33 (See Ex. C to Mot. to Compel, Doc. No. 198-3 (sealed).)
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`34 (See Mot. to Compel 3, Doc. No. 196.)
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`6
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`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17901 Page 7 of 9
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`Agresta as a person responsible for sales strategy.35 Based on a review of the examples provided
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`by EagleView, it is apparent the new productions contain at last some relevant documents about
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`which Mr. Agresta is likely to have knowledge. The timing of Nearmap’s production deprived
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`EagleView of the opportunity to examine him about these relevant documents. Under these
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`circumstances, a continued deposition is necessary to “fairly examine” Mr. Agresta pursuant to
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`Rule 30(d)(1).
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`Nearmap’s contention that EagleView should have deposed other witnesses about these
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`documents is unpersuasive. Nearmap suggests EagleView could have asked two other Rule
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`30(b)(6) designees about the documents: Tom Celinski, Nearmap’s Chief Technology Officer,
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`and Natasha Ridley, another Nearmap employee. But Mr. Celinski was not a party to the email
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`chain discussed above, which EagleView identifies as a key document it seeks to question Mr.
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`Agresta about. And although Ms. Ridley was a party to those emails, EagleView seeks to
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`examine Mr. Agresta about his own statements in the emails. The opportunity to question Mr.
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`Celinski or Ms. Ridley is not an adequate substitute for examining Mr. Agresta on this topic.
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`Further, it is not apparent either Mr. Celinski or Ms. Ridley have knowledge coextensive of Mr.
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`Agresta’s regarding other documents from the new production, particularly where the documents
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`are from Mr. Agresta’s custodial file. Finally, the fact that Nearmap designated other witness to
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`testify in a Rule 30(b)(6) capacity regarding infringement does not prevent EagleView from
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`examining Mr. Agresta in an individual capacity regarding that topic.
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`35 (See Ex. B to Mot. to Suppl., Doc. No. 224-2 (sealed).) In its opposition to the motion to
`supplement, Nearmap asserted the January 2 examples provided by EagleView primarily
`addressed products which were not accused under the then-current pleadings. (See Opp’n to
`Mot. to Supplement, Doc. No. 225.) However, EagleView has since filed an amended complaint
`adding allegations of infringement relating to one of these products. (See First Am. Compl.,
`Doc. No. 274.)
`
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`7
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`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17902 Page 8 of 9
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`For all these reasons, a continued deposition of Mr. Agresta is warranted. Nevertheless,
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`EagleView has not adequately justified its request for an additional four hours. Although
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`EagleView deposed Mr. Agresta in his individual capacity for only 2.5 hours, EagleView used
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`the full seven hours agreed upon by the parties for Mr. Agresta’s combined deposition. Thus,
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`EagleView must show any additional time beyond this limit is necessary to fairly examine Mr.
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`Agresta. While the new production was voluminous, EagleView has identified only three
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`specific documents it seeks to examine Mr. Agresta about, and it does not explain why four
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`hours are needed. The new production also constitutes only a fraction of the total production
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`from Mr. Agresta’s file. Where EagleView used only 2.5 hours to question Mr. Agresta
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`regarding the prior productions of more than 35,000 documents, EagleView does not explain
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`why it needs nearly twice that time to question him about the new production. Therefore, Mr.
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`Agresta’s continued deposition will be limited to ninety minutes. The subject matter of the
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`deposition will also be limited to the documents produced from Mr. Agresta’s custodial file on or
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`after December 7, 2022.
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`CONCLUSION
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`
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`EagleView’s motion to supplement the record36 is granted, and EagleView’s motion to
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`compel37 is granted in part. Nearmap is ordered to make Mr. Agresta available for a continued
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`36 (Doc. No. 222.)
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`37 (Doc. No. 196.)
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`8
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`Case 2:21-cv-00283-TS-DAO Document 295 Filed 05/05/23 PageID.17903 Page 9 of 9
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`deposition of no more than ninety minutes regarding the documents produced from his custodial
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`file on or after December 7, 2022.
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`DATED this 5th day of May, 2023.
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`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`9
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