`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 MOTIONS TO
`SEAL (DOC. NOS. 236, 237, 286, 289, 290)
`RELATED TO VERISK SETTLEMENT
`AGREEMENT, NEGOTIATION
`COMMUNICATIONS, AND
`RELATED FILINGS
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17991 Page 1 of 7
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`
`
`
`In this patent infringement case, the parties have filed motions to seal various documents
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`related to a settlement agreement between Plaintiffs Eagle View Technologies, Inc. and
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`Pictometry International Corp. (collectively, “EagleView”) and nonparties Verisk Analytics, Inc.
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`and Xactware Solutions, Inc. (collectively, “Verisk”).1 Defendant Nearmap US, Inc. moved to
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`amend its answer and counterclaims to assert a patent misuse defense based on the Verisk
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`settlement.2 This motion was opposed by EagleView but ultimately granted.3 The settlement
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`agreement and emails reflecting underlying settlement negotiations were filed under seal as
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`exhibits to the briefing on Nearmap’s motion to amend and Nearmap’s amended answer.
`
`
`1 (Mots. to Seal, Doc. Nos. 236, 237, 286, 289, 290.)
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`2 (See Mot. for Leave to File First Am. Answer and Countercls., Doc. No. 101.)
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`3 (See Mem. Decision and Order Granting Def.’s Mot. for Leave to File First Am. Answer and
`Countercls., and Granting in Part and Den. in Part Pls.’ Mot. for Leave to File an Am. Compl.,
`Doc. No. 267.)
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`
`
`1
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`

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`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17992 Page 2 of 7
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`EagleView seeks to maintain under seal the settlement agreement and negotiation emails,
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`as well as portions of other filings quoting from or paraphrasing those documents—specifically,
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`portions of the briefing on the motion to amend, of Nearmap’s amended answer, and of the
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`motions to seal.4 EagleView argues these documents contain confidential business information
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`which would harm the competitive interests of both EagleView and Verisk if disclosed.5
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`Nearmap did not file any opposition to EagleView’s motions to seal, and it filed its own motion
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`to seal based solely on EagleView’s designation of the settlement agreement and negotiation
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`emails as “attorneys’ eyes only” under the Standard Protective Order.6
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`As explained below, EagleView has demonstrated the Verisk settlement agreement, the
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`negotiation emails, and the portions of other filings quoting from or paraphrasing them warrant
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`sealing. These documents contain EagleView’s and Verisk’s confidential business information,
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`and these entities’ interest in protecting such information from competitors outweighs the
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`presumption of public access at this stage of the case. Therefore, the motions to seal are granted,
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`and the documents at issue shall remain sealed until otherwise ordered.
`
`
`4 (See EagleView Mots. to Seal, Doc. Nos. 236, 237, 289, 290.) The court denied prior motions
`to seal some of the same documents without prejudice, with leave to file new motions to seal
`addressing the deficiencies identified in the order. (See Mem. Decision and Order Den. Without
`Prejudice Mots. to Seal, Doc. No. 218.) The parties subsequently filed the motions to seal now
`before the court.
`
`5 (See, e.g., Pls.’ Renewed Mot to Seal Settlement Agreement, Negotiation Commc’ns, and
`Related Filings (“Pls.’ Renewed Mot. to Seal”), Doc. No. 236.)
`
`6 (See Defs.’ Mot. for Leave to File Am. Answer Under Seal, Doc. No. 286.)
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`
`
`2
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`

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`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17993 Page 3 of 7
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`LEGAL STANDARDS
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`“Courts have long recognized a common-law right of access to judicial records.”7
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`However, this right is “not absolute.”8 “[T]he presumption in favor of access to judicial records
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`may be overcome where countervailing interests heavily outweigh the public interests in
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`access.”9 “The burden is on the party seeking to restrict access to show some significant interest
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`that outweighs the presumption.”10 “[W]here documents are used to determine litigants’
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`substantive legal rights, a strong presumption of access attaches.”11
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`ANALYSIS
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`EagleView contends the Verisk settlement agreement, negotiation emails, and related
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`filings warrant sealing because they contain “highly confidential” information which, if
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`disclosed, would “irreparably harm the competitive interests of both EagleView and non-party
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`Verisk.”12 EagleView also notes the settlement agreement included a confidentiality clause, and
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`both EagleView and Verisk “operated under the legitimate expectation that the Settlement
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`Agreement and its negotiation team’s communications would remain confidential.”13
`
`
`7 Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (quoting Mann v. Boatright,
`477 F.3d 1140, 1149 (10th Cir. 2007)).
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`8 Id. (citation omitted).
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`9 Id. (internal quotation marks omitted).
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`10 Id. (internal quotation marks omitted).
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`11 Id. at 1242 (alteration in original) (citation omitted).
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`12 (Pls.’ Renewed Mot. to Seal 1, Doc. No. 236.)
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`13 (Id.)
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`3
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`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17994 Page 4 of 7
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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 In Colony Insurance Company v.
`
`Burke,15 the Tenth Circuit denied a motion to seal confidential settlement agreements where
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`“[t]he parties themselves placed these settlements at the center of [the] controversy,” and
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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.”16
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`But the Tenth Circuit also recognizes “a party may overcome the presumption in favor of
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`public access to judicial records by demonstrating the pages contain ‘sources of business
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`information that might harm a litigant’s competitive standing.’”17 Thus, documents containing
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`“sensitive, proprietary information concerning [a party’s] business practices” may properly be
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`sealed.18 And this rationale is even stronger where “the records could harm the competitive
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`interests of third parties.”19
`
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`14 See 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”).
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`15 698 F.3d 1222.
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`16 Id. at 1241–42.
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`17 Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1162 n.8 (10th Cir. 2016) (quoting
`Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
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`18 Braun v. Medtronic Sofamor Danek, Inc., 719 F. App’x 782, 801 n.8 (10th Cir. 2017)
`(unpublished).
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`19 Hershey v. ExxonMobil Oil Corp., 550 F. App’x 566, 574 (10th Cir. 2013) (unpublished).
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`4
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`

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`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17995 Page 5 of 7
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`EagleView has demonstrated the documents at issue contain confidential business
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`information which would result in competitive harm to EagleView and Verisk if publicly
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`disclosed. EagleView points to specific obligations, covenants, representations, and warranties
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`in the settlement agreement, as well as discussions of these terms in the negotiation emails, and
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`explains in detail how disclosure of this information would harm competitive interests of both
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`EagleView and Verisk. EagleView also provides a declaration from Verisk’s president
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`explaining how Verisk would be harmed by disclosure of this information to competitors.20
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`Based on EagleView’s submissions and a review of the sealed documents, it is apparent these
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`documents contain confidential business information which would harm EagleView’s and
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`Verisk’s competitive interests if publicly disclosed.
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`Further, unlike in Colony Insurance, the settlement agreement at issue here was not
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`between the parties to this case. Rather, it is an agreement between EagleView and Verisk, a
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`nonparty. And Nearmap—not EagleView or Verisk—put the settlement agreement at issue in
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`this case by relying on it to support an affirmative defense.21 Thus, the party seeking to seal the
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`documents is not the party that put the agreement at issue. More importantly, unlike in Colony
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`Insurance, EagleView does not rely solely on the confidentiality clause as a basis for sealing the
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`20 (See Ex. 1 to Pls.’ Renewed Mot. to Seal, Decl. of Maroun S. Mourad, Doc. No. 238-1
`(sealed).)
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`21 In a prior order, this court stated the parties had placed “the outcome of the Verisk litigation”
`at issue in this case, citing both Nearmap’s proposed amended answer and references in
`EagleView’s complaint to the “successful litigation” against Verisk. (See Mem. Decision and
`Order Den. Without Prejudice Mots. to Seal 4, Doc. No. 218 (citing Compl. ¶¶ 53, 72, 91, 114,
`135, 162, 182, 200, Doc. No. 2).) But EagleView correctly notes it is Nearmap which placed the
`settlement agreement, specifically, at issue. (See Pls.’ Renewed Mot. to Seal 6–7, Doc. No. 236.)
`Indeed, EagleView’s complaint in this action was filed before the Verisk settlement occurred,
`while an appeal of a judgment against Verisk was pending. Thus, EagleView persuasively
`asserts the complaint’s references to “successful litigation” refer to the judgment against Verisk,
`and not to the settlement agreement. (See id. at 7.)
`
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`5
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`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17996 Page 6 of 7
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`agreement. As described above, EagleView has articulated a real and substantial interest which
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`justifies sealing the settlement agreement and related documents.
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`The countervailing interests articulated by EagleView outweigh the presumption of
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`public access to judicial records at this stage. Although the sealed documents include portions of
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`Nearmap’s answer, it is not yet clear whether the sealed information will be used to determine
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`the parties’ substantive legal rights. Indeed, the court’s ruling on the Nearmap’s motion to
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`amend referred only generally to the Verisk settlement agreement and did not discuss its terms in
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`detail.22 Further, the parties publicly filed redacted versions of Nearmap’s answer, the briefing
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`on the motion to amend, and the motions to seal, redacting only the portions quoting from or
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`discussing in detail the sealed settlement agreement and negotiation emails. Thus, the majority
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`of the answer and motion briefing remain publicly accessible. Under these circumstances,
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`EagleView’s and Verisk’s interests in maintaining the confidentiality of competitive business
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`information outweighs the public interest in access at this stage of the case.23
`
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`22 (See Mem. Decision and Order Granting Def.’s Mot. for Leave to File First Am. Answer and
`Countercls., and Granting in Part and Den. in Part Pls.’ Mot. for Leave to File an Am. Compl. 4,
`Doc. No. 267.)
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`23 This determination may be revisited if the documents are later used to determine the parties’
`substantive legal rights.
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`6
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`Case 2:21-cv-00283-TS-DAO Document 307 Filed 06/09/23 PageID.17997 Page 7 of 7
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`CONCLUSION
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`The parties’ motions to seal24 the Verisk settlement agreement, negotiation emails, and
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`related filings are granted. These documents25 shall remain sealed until otherwise ordered.
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`DATED this 9th day of June, 2023.
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`
`
`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
`
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`24 (Doc. Nos. 236, 237, 286, 289, 290.)
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`25 The sealed documents are: Nearmap’s unredacted proposed amended answer and exhibits 2
`and 3 thereto, (Doc. No. 103 and attachments); EagleView’s unredacted opposition to Nearmap’s
`motion to amend, (Doc. No. 110); Nearmap’s unredacted reply in support of the motion to
`amend and exhibit 9 thereto, (Doc. No. 120 and attachment); Nearmap’s unredacted amended
`answer and counterclaims, (Doc. No. 287); and two unredacted motions to seal, (Doc. Nos. 238
`& 291).
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`
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`7
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`