`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. 197, 204, 210, 226, 233)
`AND GRANTING IN PART AND
`DENYING IN PART MOTION TO SEAL
`(DOC. NO. 223) RELATED TO
`EAGLEVIEW’S DISCOVERY MOTION
`REGARDING THE DEPOSITION OF
`TONY AGRESTA
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 312 Filed 06/09/23 PageID.18020 Page 1 of 5
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
`
`
`
`
`In this patent infringement case, the parties have filed motions to seal1 certain exhibits
`
`and portions of the briefing related to Plaintiffs Eagle View Technologies, Inc. and Pictometry
`
`International Corp.’s (collectively, “EagleView”) discovery motion2 regarding the deposition of
`
`Tony Agresta, an officer of Defendant Nearmap US, Inc. For the reasons explained below, the
`
`motions to seal at docket numbers 197, 204, 210, 226, and 233 are granted, and the motion to
`
`seal at docket number 223 is granted in part and denied in part. Aside from an exhibit containing
`
`emails between counsel which no party seeks to keep sealed,3 all other documents at issue shall
`
`remain sealed.
`
`
`1 (Doc. Nos. 197, 204, 210, 223, 226, 233.)
`
`2 (Doc. No. 196.)
`
`3 (Ex. A to EagleView Mot. to Suppl. the Record in Support of Short Form Disc. Mot. to Compel
`Cont’d Dep. of Tony Agresta (“EagleView Mot. to Suppl.”), Doc. No. 224-1.)
`
`
`
`1
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 312 Filed 06/09/23 PageID.18021 Page 2 of 5
`
`LEGAL STANDARDS
`
`“Courts have long recognized a common-law right of access to judicial records.”4
`
`However, this right is “not absolute.”5 “[T]he presumption in favor of access to judicial records
`
`may be overcome where countervailing interests heavily outweigh the public interests in
`
`access.”6 “The burden is on the party seeking to restrict access to show some significant interest
`
`that outweighs the presumption.”7 “[W]here documents are used to determine litigants’
`
`substantive legal rights, a strong presumption of access attaches.”8
`
`ANALYSIS
`
`The parties seek to seal exhibits B and C to EagleView’s discovery motion regarding Mr.
`
`Agresta’s deposition;9 exhibits 3 and 6 to Nearmap’s opposition;10 exhibits A through D to
`
`EagleView’s motion to supplement the record in support of the discovery motion;11 and exhibits
`
`1 and 2 to Nearmap’s opposition to the motion to supplement.12 These exhibits include excerpts
`
`from the depositions of Mr. Agresta and another Nearmap officer, Tom Celinski; internal
`
`Nearmap emails regarding an accused product; documents outlining Nearmap’s business strategy
`
`
`4 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)).
`
`5 Id. (citation omitted).
`
`6 Id. (internal quotation marks omitted).
`
`7 Id. (internal quotation marks omitted).
`
`8 Id. at 1242 (alteration in original) (citation omitted).
`
`9 (Doc. Nos. 198-2, 198-3 (sealed).)
`
`10 (Doc. Nos. 211-3, 211-6 (sealed).)
`
`11 (Doc. Nos. 224-1–224-4 (sealed).)
`
`12 (Doc. Nos. 227-1, 227-2 (sealed).)
`
`
`
`2
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 312 Filed 06/09/23 PageID.18022 Page 3 of 5
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`and commercial relationships; Nearmap’s responses to certain requests for admission; and emails
`
`between the parties’ counsel.
`
`EagleView moved for leave to file the exhibits to EagleView’s motions under seal solely
`
`because Nearmap designated them “attorneys’ eyes only.”13 Nearmap does not seek to seal the
`
`emails between counsel (exhibit A to EagleView’s motion to supplement).14 But Nearmap
`
`contends the other exhibits to EagleView’s motions and Nearmap’s oppositions contain
`
`confidential business information which would harm Nearmap’s competitive interests if
`
`disclosed.15
`
`Because the emails between counsel were initially filed under seal solely based on
`
`Nearmap’s designation, and Nearmap does not seek to seal them, exhibit A16 to EagleView’s
`
`motion to supplement shall be unsealed.17 EagleView’s motion to seal at docket number 223 is
`
`denied as to this exhibit only.
`
`Nearmap has demonstrated the other exhibits warrant sealing at this stage. These exhibits
`
`merely relate to a discovery dispute; they have not been used to determine the litigants’
`
`substantive legal rights. Although the court’s order on the discovery motion and motion to
`
`
`13 (See EagleView Mots. to Seal, Doc. Nos. 197, 223.)
`
`14 (See Nearmap Mot. to Seal, Doc. No. 233 (seeking to seal only exhibits B, C, and D to
`EagleView’s motion to supplement).)
`
`15 (See Nearmap Mots. to Seal, Doc. Nos. 204, 210, 226, 223.)
`
`16 (Doc. No. 224-1.)
`
`17 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”).
`
`
`
`3
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 312 Filed 06/09/23 PageID.18023 Page 4 of 5
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`supplement refers to some of these exhibits, it does not discuss their contents in detail.18 Thus,
`
`the public’s interest in access to these documents is low at this stage. Further, Nearmap has
`
`articulated a significant countervailing interest in protecting its confidential business information
`
`from disclosure to competitors.19 Based on a review of the sealed exhibits, it is apparent they
`
`contain some contain confidential business information which could cause competitive harm if
`
`disclosed. This countervailing interest outweighs the presumption of public access here, where
`
`the proposed sealed documents relate only to a discovery dispute and were not discussed in detail
`
`in the court’s ruling.20
`
`CONCLUSION
`
`EagleView’s motion to seal at docket number 223 is denied only as to exhibit A to
`
`EagleView’s motion to supplement. The clerk of court is directed to unseal this exhibit.21
`
`18 (See Doc. No. 295.)
`
`
`
`19 See Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1162 n.8 (10th Cir. 2016) (“[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.’” (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
`
`20 This determination may be revisited if the documents are later used to determine the parties’
`substantive legal rights.
`
`21 (Doc. No. 224-1.)
`
`
`
`4
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 312 Filed 06/09/23 PageID.18024 Page 5 of 5
`
`The motion at docket number 223 is otherwise granted, and the motions to seal at docket
`
`numbers 197, 204, 210, 226, and 233 are also granted. All other exhibits at issue22 shall remain
`
`sealed until otherwise ordered.
`
`DATED this 9th day of June, 2023.
`
`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
`
`
`22 (Doc. Nos. 198-2, 198-3, 211-3, 211-6, 224-2, 224-3, 224-4, 227-1, 227-2.)
`
`
`
`5
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`
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