`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. 193, 202, 207, 217, 235)
`AND GRANTING IN PART AND
`DENYING IN PART MOTION TO SEAL
`(DOC. NO. 231) RELATED TO
`EAGLEVIEW’S MOTION TO AMEND
`FINAL INFRINGEMENT
`CONTENTIONS
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18013 Page 1 of 7
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
`
`
`
`
`In this patent infringement case, the parties have filed motions to seal1 various documents
`
`related to Plaintiffs Eagle View Technologies, Inc. and Pictometry International Corp.’s
`
`(collectively, “EagleView”) motion to amend final infringement contentions.2 For the reasons
`
`explained below, the motions at docket numbers 193, 202, 207, 217, and 235 are granted, and the
`
`motion at docket number 231 is granted in part and denied in part. Aside from an exhibit
`
`containing a deposition transcript excerpt which no party seeks to keep sealed, all other
`
`documents at issue shall remain sealed.
`
`
`1 (Mots. to Seal, Doc. Nos. 193, 202, 207, 217, 231, 235.)
`
`2 (Doc. No. 192.)
`
`
`
`1
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`
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`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18014 Page 2 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.”3
`
`However, this right is “not absolute.”4 “[T]he presumption in favor of access to judicial records
`
`may be overcome where countervailing interests heavily outweigh the public interests in
`
`access.”5 “The burden is on the party seeking to restrict access to show some significant interest
`
`that outweighs the presumption.”6 “[W]here documents are used to determine litigants’
`
`substantive legal rights, a strong presumption of access attaches.”7
`
`“[A] party may overcome the presumption in favor of public access to judicial records by
`
`demonstrating the pages contain ‘sources of business information that might harm a litigant’s
`
`competitive standing.’”8 Thus, documents containing “sensitive, proprietary information
`
`concerning [a party’s] business practices” may properly be sealed.9 And this rationale is even
`
`stronger where “the records could harm the competitive interests of third parties.”10
`
`
`3 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)).
`
`4 Id. (citation omitted).
`
`5 Id. (internal quotation marks omitted).
`
`6 Id. (internal quotation marks omitted).
`
`7 Id. at 1242 (alteration in original) (citation omitted).
`
`8 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)).
`
`9 Braun v. Medtronic Sofamor Danek, Inc., 719 F. App’x 782, 801 n.8 (10th Cir. 2017)
`(unpublished).
`
`10 Hershey v. ExxonMobil Oil Corp., 550 F. App’x 566, 574 (10th Cir. 2013) (unpublished).
`
`
`
`2
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18015 Page 3 of 7
`
`A. Documents Nearmap Seeks to Seal
`
`ANALYSIS
`
`Defendant Nearmap US, Inc. seeks to seal portions of EagleView’s motion to amend
`
`final infringement contentions and reply, and certain exhibits to the motion, opposition, and
`
`reply.11 The exhibits are Nearmap’s responses to certain interrogatories,12 internal Nearmap
`
`emails,13 a “SkyMeasure” roof report,14 Nearmap’s internal roofing industry analysis,15 and a
`
`partial transcript from an October 31, 2022 hearing on a discovery motion.16 Nearmap contends
`
`these exhibits, and the portions of the motion and reply quoting from them or discussing them in
`
`detail, contain confidential business information and technical information which would harm
`
`Nearmap’s competitive interests if disclosed.17 EagleView moved to seal these documents
`
`solely because Nearmap designated them “attorneys’ eyes only,”18 and it did not oppose
`
`Nearmap’s motions to seal them.
`
`Nearmap has demonstrated these documents warrant sealing. Based on a review of the
`
`documents at issue, they contain at least some confidential information which could be
`
`
`11 (See Nearmap Mots. to Seal, Doc. Nos. 202, 207, 235.)
`
`12 (Exs. 1 & 3 to EagleView Mot. to Am. Final Infringement Contentions, Doc. Nos. 194-1, 194-
`3 (sealed).)
`
`13 (Ex. 4 to EagleView Mot. to Am. Final Infringement Contentions, Doc. No. 194-4 (sealed).)
`
`14 (Ex. 5 to EagleView Mot. to Am. Final Infringement Contentions, Doc. No. 194-5 (sealed).)
`
`15 (Ex. 6 to Nearmap Opp’n to EagleView Mot. to Am. Final Infringement Contentions, Doc.
`No. 208-6 (sealed).)
`
`16 (Ex. 6 to EagleView Reply in Support of Mot. to Am. Final Infringement Contentions, Doc.
`No. 232-6 (sealed).)
`
`17 (See Nearmap Mots. to Seal, Doc. Nos. 202, 207, 235.)
`
`18 (See EagleView Mots. to Seal, Doc. Nos. 193, 231.)
`
`
`
`3
`
`
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`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18016 Page 4 of 7
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`competitively harmful if disclosed. This includes confidential information regarding Nearmap’s
`
`business strategy and practices, technical descriptions of products, and confidential information
`
`regarding Nearmap’s customers and partnerships with other entities. Further, the sealed partial
`
`transcript reflects the portion of the October 31, 2022 hearing which was closed to the public and
`
`party representatives due to discussion of “attorneys’ eyes only” information—including
`
`confidential information regarding Nearmap’s customers, business partnerships, and products.
`
`Thus, Nearmap has articulated a significant interest weighing against disclosure.
`
`This countervailing interest outweighs the presumption of public access to judicial
`
`records at this stage. The sealed documents relate to a motion to amend final contentions, not
`
`dispositive motions—and it is not yet clear whether the sealed information will be used to
`
`determine the parties’ substantive legal rights. Further, the parties publicly filed redacted
`
`versions of the motion and reply, redacting only the portions quoting from or discussing in detail
`
`the sealed information and exhibits.19 Indeed, Nearmap filed a redacted version of EagleView’s
`
`motion with fewer redactions than EagleView’s initial version,20 thereby consenting to unseal
`
`some information which was not truly confidential. And neither Nearmap’s opposition nor the
`
`court’s order on the motion to amend final contentions contain any redactions.21 Thus, the
`
`majority of the briefing and the entirety of the order remain publicly accessible. Under these
`
`
`19 (See Doc. Nos. 192, 201, 230.)
`
`20 (See Doc. No. 201.)
`
`21 (See Doc. Nos. 206, 305.)
`
`
`
`4
`
`
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`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18017 Page 5 of 7
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`circumstances, Nearmap’s interests in maintaining the confidentiality of competitive business
`
`information outweighs the public interest in access to these documents at this stage of the case.22
`
`B. Documents EagleView Seeks to Seal
`
`EagleView seeks to seal portions of its reply quoting a settlement agreement between
`
`EagleView and nonparties Verisk Analytics, Inc. and Xactware Solutions, Inc. (collectively,
`
`“Verisk”).23 EagleView also seeks to seal exhibit 3 to Nearmap’s opposition, which is an
`
`“integration agreement” between EagleView and Verisk entered into contemporaneously with
`
`the settlement.24 EagleView contends the settlement agreement and integration agreement
`
`contain confidential business information which would harm the competitive interests of both
`
`EagleView and Verisk if disclosed.25
`
`EagleView has demonstrated these documents warrant sealing. The court has previously
`
`determined the Verisk settlement agreement and related negotiation communications warrant
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`sealing,26 based on detailed information regarding confidentiality and competitive harm provided
`
`by both EagleView and Verisk in a prior motion to seal.27 Similarly, the integration agreement
`
`contains confidential business information of both EagleView and Verisk which could cause
`
`
`22 This determination may be revisited if the documents are later used to determine the parties’
`substantive legal rights.
`
`23 (See EagleView Mot. to Seal, Doc. No. 231; EagleView Reply, Doc. Nos. 230 (redacted), 232
`(sealed).)
`
`24 (See EagleView Mot. to Seal, Doc. No. 217; Ex. 3 to Nearmap Opp’n, Doc. No. 208-3
`(sealed).)
`
`25 (See EagleView Mots. to Seal, Doc. Nos. 217, 231.)
`
`26 (See Doc. No. 307.)
`
`27 (See EagleView Renewed Mot. to Seal, Doc. Nos. 236 (redacted), 238 (sealed).)
`
`
`
`5
`
`
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`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18018 Page 6 of 7
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`competitive harm if disclosed. Further, the court did not mention or cite the Verisk settlement
`
`agreement or integration agreement in its order on the motion to amend final infringement
`
`contentions.28 Thus, the public’s interest in access is minimal. Under these circumstances,
`
`EagleView’s and Verisk’s countervailing interest in protecting confidential business information
`
`outweighs the presumption of public access at this stage.29
`
`C. Excerpt of Dormeyer Deposition Transcript
`
`Exhibit 5 to EagleView’s reply is an excerpt of EagleView officer Piers Dormeyer’s
`
`deposition transcript.30 EagleView moved to seal this exhibit solely because it contains
`
`discussion of information which EagleView believed Nearmap had designated “attorneys’ eyes
`
`only.”31 But although Nearmap moved to seal another exhibit to the reply,32 Nearmap did not
`
`move to seal this exhibit. Where the designating party does not seek to seal it, and no party has
`
`articulated a significant interest outweighing the presumption of public access, this exhibit shall
`
`be unsealed.33 EagleView’s motion to seal at docket number 231 is denied as to this exhibit
`
`only.
`
`28 (See Doc. No. 305.)
`
`
`
`29 This determination may be revisited if the documents are later used to determine the parties’
`substantive legal rights.
`
`30 (Ex. 5 to EagleView Reply, Doc. No. 232-5.)
`
`31 (See EagleView Mot. to Seal, Doc. No. 231.)
`
`32 (See Nearmap Mot. to Seal, Doc. No. 235.)
`
`33 See DUCivR 5-3(b)(2)(C)(i) (stating if the sole reason for filing documents under seal is
`another party’s designation, the designating party must move to seal them within seven days or
`they “may be unsealed without further notice”).
`
`
`
`6
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`Case 2:21-cv-00283-TS-DAO Document 311 Filed 06/09/23 PageID.18019 Page 7 of 7
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`CONCLUSION
`
`EagleView’s motion to seal at docket number 231 is denied only as to exhibit 5 to
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`EagleView’s reply in support of the motion to amend final infringement contentions. The clerk
`
`of court is directed to unseal this exhibit.34
`
`The motion at docket number 231 is otherwise granted, and the motions to seal at docket
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`numbers 193, 202, 207, 217, and 235 are also granted. All other documents35 at issue shall
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`remain sealed until otherwise ordered.
`
`DATED this 9th day of June, 2023.
`
`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
`
`34 (Doc. No. 232-5.)
`
`
`
`35 The sealed documents are: EagleView’s unredacted motion to amend final infringement
`contentions and exhibits 1, 3, 4, and 5, thereto, (Doc. No. 194 and attachments and Doc. No.
`203); exhibits 3 and 6 to Nearmap’s opposition to the motion, (Doc. No. 208 and attachments);
`EagleView’s unredacted reply, (Doc. No. 232); and exhibit 6 to the reply, (Doc. No. 232-6).
`
`
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`7
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