`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. 157, 167, 174, 180, 183,
`189, 191, 195, 214, 228, 275, 277, 278)
`RELATED TO EAGLEVIEW’S MOTION
`TO AMEND AND FIRST AMENDED
`COMPLAINT
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18005 Page 1 of 8
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`
`
`
`In this patent infringement case, the parties and nonparty GAF Materials LLC have filed
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`motions to seal1 various documents related to Plaintiffs Eagle View Technologies, Inc. and
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`Pictometry International Corp.’s (collectively, “EagleView”) motion to amend the complaint2
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`and EagleView’s first amended complaint.3 For the reasons explained below, the motions to seal
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`are granted.
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`BACKGROUND
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`EagleView brought this action against Defendant Nearmap US, Inc., alleging
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`infringement of patents related to rooftop aerial measurement technology. EagleView moved to
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`amend its complaint to assert new claims against Nearmap, add related Nearmap entities as
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`1 (Mots. to Seal, Doc. Nos. 157, 167, 174, 180, 183, 189, 191, 195, 214, 228, 275, 277, 278.)
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`2 (Doc. No. 155.)
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`3 (Doc. No. 274.)
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`1
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18006 Page 2 of 8
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`defendants, and add GAF as a defendant.4 In the alternative, EagleView sought to consolidate
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`this case with its separate patent infringement case against GAF.5 Nearmap and GAF opposed
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`the motion,6 and EagleView filed separate replies.7 Nearmap later filed a notice of supplemental
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`authority,8 which EagleView moved to strike.9
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`The court granted EagleView’s motion to amend in part, permitting EagleView to amend
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`the complaint to add new claims against Nearmap US and to add related Nearmap entities as
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`defendants.10 But the court denied the request to add GAF as a defendant and declined to
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`reconsider its prior order denying consolidation.11 EagleView then filed its operative first
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`amended complaint.12
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`The proposed sealed documents include certain exhibits to EagleView’s motion to
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`amend, proposed amended complaint, replies, and first amended complaint, as well as the
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`portions of those filings which quote from or paraphrase the exhibits. EagleView moved to seal
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`these documents solely because the exhibits were designated “attorneys’ eyes only” by Nearmap,
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`4 (See Pls.’ Mot. for Leave to File an Am. Compl. or, in the Alternative, to Consolidate Cases
`(“EagleView Mot. to Am. Compl.”), Doc. No. 155.)
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`5 (See id.)
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`6 (See Nearmap Opp’n, Doc. No. 175; GAF Resp., Doc. No. 176.)
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`7 (Doc. Nos. 179, 182.)
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`8 (Doc. No. 188.)
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`9 (Doc. No. 199.)
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`10 (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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`11 (See id.)
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`12 (Pls.’ First Am. Compl., Doc. No. 274.)
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`2
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18007 Page 3 of 8
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`GAF, or another nonparty, Primitive LLC d/b/a Pushpin.13 Nearmap and GAF each filed
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`motions to seal, arguing the exhibits and related filings contain confidential business information
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`which would harm their competitive interests if disclosed.14
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`The proposed sealed documents also include portions of Nearmap’s notice of
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`supplemental authority and exhibits thereto, and portions of Nearmap’s opposition to
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`EagleView’s motion to strike the notice. Nearmap moved to seal these documents solely based
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`on EagleView’s “attorneys’ eyes only” designations.15 EagleView moved to seal them based on
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`the assertion that they contain EagleView’s confidential business information.16
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`LEGAL STANDARDS
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`“Courts have long recognized a common-law right of access to judicial records.”17
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`However, this right is “not absolute.”18 “[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.”19 “The burden is on the party seeking to restrict access to show some significant
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`13 (See EagleView Mots. to Seal, Doc. Nos. 157, 180, 183, 275.)
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`14 (See Nearmap Mots. to Seal, Doc. Nos. 167, 191, 277; GAF Mots. to Seal, Doc. Nos. 174,
`278.)
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`15 (Nearmap Mots. to Seal, Doc. Nos. 189, 214.)
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`16 (EagleView Mots. to Seal, Doc. Nos. 195, 228.)
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`17 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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`18 Id. (citation omitted).
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`19 Id. (internal quotation marks omitted).
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`3
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18008 Page 4 of 8
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`interest that outweighs the presumption.”20 “[W]here documents are used to determine litigants’
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`substantive legal rights, a strong presumption of access attaches.”21
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`“[A] party may overcome the presumption in favor of public access to judicial records by
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`demonstrating the pages contain ‘sources of business information that might harm a litigant’s
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`competitive standing.’”22 Thus, documents containing “sensitive, proprietary information
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`concerning [a party’s] business practices” may properly be sealed.23 And this rationale is even
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`stronger where “the records could harm the competitive interests of third parties.”24
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`A. Documents Nearmap and GAF Seek to Seal
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`ANALYSIS
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`Nearmap and GAF contend certain exhibits to the motion to amend, replies, and first
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`amended complaint (and portions of those filings discussing the exhibits) should be sealed
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`because they contain confidential business information, including confidential information
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`regarding their business relationships, business strategies, and products.25 These exhibits are a
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`confidential “services agreement” between GAF and another entity,26 emails and text messages
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`20 Id. (internal quotation marks omitted).
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`21 Id. at 1242 (alteration in original) (citation omitted).
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`22 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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`23 Braun v. Medtronic Sofamor Danek, Inc., 719 F. App’x 782, 801 n.8 (10th Cir. 2017)
`(unpublished).
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`24 Hershey v. ExxonMobil Oil Corp., 550 F. App’x 566, 574 (10th Cir. 2013) (unpublished).
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`25 (See Nearmap Mots. to Seal, Doc. Nos. 167, 191, 277; GAF Mots. to Seal, Doc. Nos. 174,
`278.)
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`26 (Ex. D to EagleView Mot. to Am. Compl., Doc. No 158-4 (sealed).)
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`4
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18009 Page 5 of 8
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`between Nearmap and GAF,27 a document which appears to contain technical descriptions of
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`how a product accused of infringement is generated,28 and Nearmap’s responses to certain
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`interrogatories.29 Nearmap and GAF contend their competitive interests would be harmed by
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`public disclosure of these exhibits and the portions of related filings discussing them.
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`Nearmap and GAF have demonstrated these documents warrant sealing. Based on a
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`review of the documents at issue, they contain at least some confidential information which
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`could be competitively harmful if disclosed. This includes discussions of business strategy and
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`practices, pricing, and technical descriptions of products. The redacted portions of related filings
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`also describe business relationships which Nearmap and GAF contend are confidential, as well
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`as technical descriptions of Nearmap and GAF products. Thus, Nearmap and GAF have
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`articulated a significant interest weighing against disclosure.
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`This countervailing interest outweighs the presumption of public access to judicial
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`records at this stage. Although the sealed documents include portions of EagleView’s amended
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`complaint, it is not yet clear whether the sealed information will be used to determine the parties’
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`substantive legal rights. Indeed, the court’s ruling on EagleView’s motion to amend does not
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`27 (Exs. F & G to EagleView Mot. to Am. Compl., Doc. Nos. 158-6, 158-7 (sealed).)
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`28 (Ex. E to EagleView Mot. to Am. Compl., Doc. No. 158-5 (sealed); Ex. 31 to Pls.’ Proposed
`First. Am. Compl., Doc. No. 159-1 (sealed) (same document); Ex. 31 to Pls.’ First Am. Compl.,
`Doc. No. 276-1 (sealed) (same document).) EagleView initially filed this document as an exhibit
`to the motion to amend and proposed amended complaint, and moved to seal it based solely on
`Pushpin’s “attorneys’ eyes only” designation. (See EagleView Mot. to Seal, Doc. No. 157.)
`Initially no other party moved to seal it. However, when EagleView later refiled it as an exhibit
`to the operative amended complaint, Nearmap moved to seal it, arguing it contains confidential
`business information. (See Nearmap Mot. to Seal, Doc. No. 277.) The court considers
`Nearmap’s arguments for sealing this document, even though they were not raised the first time
`the document was filed.
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`29 (Ex. J to EagleView Reply to Nearmap Opp’n to EagleView Mot. to Am. Compl., Doc. No.
`181-1 (sealed).)
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`5
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18010 Page 6 of 8
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`reference any of the sealed exhibits.30 Further, EagleView publicly filed redacted versions of its
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`motion to amend, replies, and amended complaint, redacting only the portions quoting from or
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`discussing in detail the sealed information and exhibits. Thus, the majority of the motion
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`briefing and amended complaint remain publicly accessible. Under these circumstances,
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`Nearmap’s and GAF’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.31
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`B. Documents EagleView Seeks to Seal
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`EagleView contends portions of Nearmap’s notice of supplemental authority, certain
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`exhibits thereto, and portions of Nearmap’s opposition to EagleView’s motion to strike the
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`notice contain EagleView’s confidential business information which would harm EagleView’s
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`competitive standing if disclosed.32 The exhibits are internal emails and excerpts from the
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`transcript of an EagleView officer’s deposition.33 EagleView asserts these emails contain
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`business strategy discussions, and the deposition testimony discusses the same information.34
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`EagleView seeks to seal the exhibits and the portions of the notice and opposition quoting from
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`and discussing them.35
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`30 (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–
`8, Doc. No. 267.)
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`31 This determination may be revisited if the documents are later used to determine the parties’
`substantive legal rights.
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`32 (See EagleView Mots. to Seal, Doc. Nos. 195, 228.)
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`33 (Exs. 1, 2, & 4 to Nearmap Notice of Suppl. Authority, Doc. Nos. 190-1, 190-2, 190-4.)
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`34 (See Doc. No. 195.)
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`35 (See id.; Doc. No. 228.)
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18011 Page 7 of 8
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`EagleView has demonstrated these documents warrant sealing at this stage. A review of
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`the exhibits confirms they contain some business strategy discussions, including EagleView’s
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`assessment of competitors, which could cause competitive harm if publicly disclosed. Thus,
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`EagleView has articulated a significant interest weighing against public access. Further, the
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`issues raised in the notice of supplemental authority are addressed only briefly in the court’s
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`order on the motion to amend, and the exhibits are not mentioned in that order.36 It is unclear, at
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`this point, whether these documents will be used to determine the parties’ substantive legal
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`rights. Under these circumstances, EagleView’s interest in maintaining the confidentiality of
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`competitive business information outweighs the public interest in access at this stage of the
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`case.37
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`36 (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–
`8, Doc. No. 267.)
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`37 This determination may be revisited if the documents are later used to determine the parties’
`substantive legal rights.
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`7
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`Case 2:21-cv-00283-TS-DAO Document 310 Filed 06/09/23 PageID.18012 Page 8 of 8
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`CONCLUSION
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`The parties’ motions to seal38 documents related to EagleView’s motion to amend and
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`first amended complaint are granted. The documents39 at issue shall remain sealed until
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`otherwise ordered.
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`DATED this 9th day of June, 2023.
`
`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`38 (Doc. Nos. 157, 167, 174, 180, 183, 189, 191, 195, 214, 228, 275, 277, 278.)
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`39 The sealed documents are: EagleView’s unredacted motion to amend the complaint and
`exhibits D, E, F, and G thereto, (Doc. No. 158 and attachments); EagleView’s unredacted
`proposed amended complaint, redlined version of the same, and exhibit 31 thereto, (Doc. No.
`159 and attachments); EagleView’s unredacted reply to Nearmap’s opposition and exhibit J
`thereto, (Doc. No. 181 and attachment); EagleView’s unredacted reply to GAF’s response, (Doc.
`No. 184); Nearmap’s unredacted notice of supplemental authority and exhibits 1, 2, and 4
`thereto, (Doc. No. 190 and attachments); Nearmap’s unredacted opposition to EagleView’s
`motion to strike the notice of supplemental authority, (Doc. No. 215); and EagleView’s
`unredacted first amended complaint and exhibit 31 thereto, (Doc. No. 276 and attachment).
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`8
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