`EAGLE VIEW TECHNOLOGIES, INC.; and
`PICTOMETRY INTERNATIONAL CORP.,
`
`
`Plaintiffs,
`
`
`v.
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`NEARMAP US, INC.; NEARMAP
`AUSTRALIA PTY LTD; and
`NEARMAP LTD,
`
`
`Defendants.
`
`
`MEMORANDUM DECISION AND
`ORDER DENYING PLAINTIFFS’
`MOTION FOR A PROTECTIVE ORDER
`PRECLUDING THE DEPOSITION OF
`EXECUTIVE CHAIRMAN CHRIS
`JURASEK (DOC. NO. 346)
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18721 Page 1 of 7
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`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`
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`In this patent infringement case, Plaintiffs Eagle View Technologies, Inc. and Pictometry
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`International Corp. (collectively, “EagleView”) move for a protective order to prevent
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`Defendants Nearmap US, Inc., Nearmap Australia Pty Ltd, and Nearmap Ltd. (collectively,
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`“Nearmap”) from deposing EagleView’s Executive Chairman, Chris Jurasek.1 EagleView
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`argues this deposition is unjustified under Rule 26 of the Federal Rules of Civil Procedure and
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`the apex doctrine.2 Nearmap, on the other hand, contends Mr. Jurasek has unique, personal
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`knowledge relevant to this case which justifies deposing him.3 As explained below, because
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`1 (Pls.’ Mot. for an Automatic Stay and a Protective Order Precluding the Dep. of Executive
`Chairman Chris Jurasek (“Mot.”), Doc. No. 346.)
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`2 (See id.; Reply in Supp. of Pls.’ Mot. for an Automatic Stay and a Protective Order Precluding
`the Dep. of Exec. Chairman Chris Jurasek, Doc. No. 367.)
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`3 (Nearmap’s Opp’n to Pls.’ Mot. for a Protective Order Precluding the Dep. of Chris Jurasek
`(“Opp’n”), Doc. No. 353.)
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`1
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`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18722 Page 2 of 7
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`Nearmap has demonstrated Mr. Jurasek has unique, personal knowledge relevant to Nearmap’s
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`patent misuse defense, and EagleView has not shown other circumstances warrant preventing
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`him from being deposed, EagleView’s motion for a protective order is denied.
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`LEGAL STANDARDS
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`Rule 26(c) of the Federal Rules of Civil Procedure permits the court, “for good cause,
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`[to] issue an order to protect a party or person from annoyance, embarrassment, oppression, or
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`undue burden or expense.”4 Under Rule 26(b), the scope of discovery encompasses “any
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`nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
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`needs of the case.”5
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`The apex doctrine allows a court to protect a high-level corporate executive from the
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`burdens of a deposition when any of the following circumstances exist:
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`(1) the executive has no unique personal knowledge of the matter in dispute; (2) the
`information sought from the executive can be obtained from another witness; (3)
`the information sought from the executive can be obtained through an alternative
`discovery method; or (4) sitting for the deposition is a severe hardship for the
`executive in light of his obligations to his company.6
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`“[T]he party seeking to depose an executive bears an initial burden of making some showing that
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`the executive has unique personal knowledge of some relevant issues.”7 “Upon such a showing,
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`the burden shifts to the executive to demonstrate by evidence that he in fact has no unique
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`4 Fed. R. Civ. P. 26(c)(1).
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`5 Fed. R. Civ. P. 26(b)(1).
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`6 Naylor Farms, Inc. v. Anadarko OGC Co., No. 11-cv-01528-REB-KLM, 2011 U.S. Dist.
`LEXIS 68940, at *3 (D. Colo. June 27, 2011) (unpublished).
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`7 Id. at *4 (internal quotation marks omitted).
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`2
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`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18723 Page 3 of 7
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`personal knowledge or that there exists one of the other three circumstances under which
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`requiring him to sit for a deposition is inappropriate.”8
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`BACKGROUND
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`EagleView brought this action against Nearmap alleging infringement of patents related
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`to rooftop aerial measurement technology.9 EagleView later settled a separate infringement
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`action against Xactware Solutions, Inc. and Verisk Analytics, Inc. (collectively, “Verisk”)
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`involving related patents. After receiving the settlement agreement and related documents in
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`discovery, Nearmap moved to amend its pleadings to add a patent misuse defense based on the
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`Verisk settlement.10 While this motion was pending, EagleView filed a motion for a protective
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`order to prevent Nearmap from deposing Mr. Jurasek, who at that time was EagleView’s CEO.11
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`Nearmap argued Mr. Jurasek had personal knowledge regarding the Verisk settlement which was
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`relevant to Nearmap’s proposed patent misuse defense and to calculation of damages for
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`EagleView’s existing claims.12 The court granted EagleView’s motion for a protective order
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`because (1) Nearmap had not yet been granted leave to assert a patent misuse defense, and (2)
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`8 Id.
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`9 (See Compl. ¶¶ 1–2, Doc. No. 2.)
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`10 (See Mot. for Leave to File First Am. Answer and Countercls., Doc. No. 101.)
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`11 (See Pls.’ Short Form Disc. Mot. for a Protective Order Precluding Deps. of CEO Chris
`Jurasek and Gen. Counsel Kim Nakamaru (“First Mot. for Protective Order”), Doc. No. 153.)
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`12 (Def.’s Opp’n to First Mot. for Protective Order, Doc. No. 163.)
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`3
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`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18724 Page 4 of 7
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`Nearmap failed to demonstrate Mr. Jurasek had unique, personal knowledge of valuation of the
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`patents relevant to calculation of damages.13
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`Thereafter, Nearmap’s motion to amend was granted14 and Nearmap filed an amended
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`pleading asserting a patent misuse defense.15 Nearmap’s amended pleading alleges EagleView
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`impermissibly broadened the scope of its patents by conditioning the settlement on Verisk’s
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`agreement to stop selling certain unaccused products that compete with EagleView.16 Nearmap
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`also alleges the settlement had anticompetitive effects.17 After amending its pleading, Nearmap
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`renewed its efforts to depose Mr. Jurasek, and EagleView filed the instant motion for a
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`protective order.18
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`ANALYSIS
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`Applying the apex doctrine factors set forth above, EagleView is not entitled to a
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`protective order preventing Mr. Jurasek from being deposed.
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`13 (See Mem. Decision and Order Granting Pls.’ Short Form Mot. for a Protective Order 5–7,
`Doc. No. 221.)
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`14 (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.
`(“Order on Mots. to Am. Pleadings”) 3–5, Doc. No. 267.)
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`15 (See Defs.’ Am. Answer to Pls.’ First Am. Compl. and Countercls. (“Am. Answer and
`Countercls.”) ¶¶ 469–81, Doc. No. 285.)
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`16 (Id. at ¶ 480; see also Order on Mots. to Am. Pleadings 4, Doc. No. 267.)
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`17 (Am. Answer and Countercls. ¶¶ 479–80, Doc. No. 285; see also Order on Mots. to Am.
`Pleadings 4, Doc. No. 267.)
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`18 (Mot., Doc. No. 346.)
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`4
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`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18725 Page 5 of 7
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`First, Nearmap has demonstrated Mr. Jurasek has unique, personal knowledge regarding
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`the Verisk settlement agreement which is relevant to Nearmap’s patent misuse defense. As set
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`forth in Nearmap’s opposition and exhibits, Mr. Jurasek personally negotiated and signed the
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`Verisk settlement agreement, including spending a day negotiating the terms of the settlement in
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`person.19 Emails between EagleView and Verisk representatives leading up to the settlement
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`show Mr. Jurasek participated in multiple one-on-one calls and in-person meetings with Verisk
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`representatives in the days leading up to the settlement.20 Mr. Jurasek also indicated, in response
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`to a settlement-related email, that he would prefer to discuss settlement issues by phone rather
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`than in writing.21 Thus, Mr. Jurasek is the only EagleView representative with knowledge of
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`these one-on-one, oral negotiations.
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`Given the broad scope of relevance at the discovery stage,22 these settlement negotiations
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`are relevant to Nearmap’s patent misuse defense. Nearmap notes the final settlement agreement
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`and written correspondence do not explain why Verisk agreed to stop selling products not
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`19 (See Opp’n 3–4, Doc. No. 353; Ex. 1 to Opp’n, Verisk Settlement Agreement (executed Nov.
`5, 2021), Doc. No. 355-1 (sealed); Ex. 3 to Opp’n, Email from C. Jurasek to S. Stephenson (Nov.
`1, 2021), Doc. No. 355-3 (sealed).)
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`20 (See Opp’n 4–5, Doc. No. 353; Exs. 7–13 to Opp’n, Doc. Nos. 355-7–355-13 (sealed)
`(contemporaneous emails referencing one-on-one phone calls and meetings between Mr. Jurasek
`and Verisk representatives regarding the settlement between Oct. 29, 2021, and Nov. 5, 2021).)
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`21 (See Opp’n 4, Doc. No. 353, Ex. 6 to Opp’n, Email from C. Jurasek to S. Stephenson (Oct. 28,
`2021), Doc. No. 355-6 (sealed).)
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`22 See Allegis Inv. Servs., LLC v. Arthur J. Gallagher & Co., No. 2:17-cv-00515, 2018 U.S. Dist.
`LEXIS 243885, at *6 (D. Utah May 25, 2018) (unpublished) (Relevance in the discovery context
`is “to be construed broadly to encompass any matter that bears on, or that reasonably could bear
`on any party’s claim or defense.” (internal quotation marks omitted)).
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`5
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`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18726 Page 6 of 7
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`covered by EagleView’s patents, or how those terms came to be in the final agreement.23 Where
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`Mr. Jurasek personally participated in one-on-one negotiations of the settlement terms, he has
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`unique knowledge relevant to these issues. Accordingly, Nearmap has met its initial burden to
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`show Mr. Jurasek has unique, personal knowledge relevant to this case.
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`EagleView has not met its burden to show that any of the other apex doctrine factors
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`would render a deposition inappropriate. Under the second factor, EagleView cannot show the
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`information sought from Mr. Jurasek can be obtained from another witness, given Mr. Jurasek’s
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`personal participation in one-on-one negotiations. Under the third factor, EagleView has not
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`identified any alternative discovery method through which Nearmap could obtain this
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`information. Finally, EagleView has not demonstrated the deposition would impose a severe
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`hardship on Mr. Jurasek in light of his corporate obligations. EagleView asserts generally that a
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`deposition would be burdensome because Mr. Jurasek’s “schedule is extremely busy and
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`demanding.”24 However, EagleView offers no evidence supporting its burden arguments, and a
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`general assertion that Mr. Jurasek is busy is insufficient to demonstrate severe hardship.
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`Accordingly, EagleView has not shown other circumstances exist which warrant protecting Mr.
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`Jurasek from being deposed.
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`For these reasons, the apex doctrine does not prevent Mr. Jurasek from being deposed,
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`and EagleView has not shown good cause for a protective order.
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`23 (See Opp’n 5, Doc. No. 353.)
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`24 (Mot. 4, Doc. No. 346.)
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`6
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`Case 2:21-cv-00283-TS-DAO Document 369 Filed 12/20/23 PageID.18727 Page 7 of 7
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`CONCLUSION
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`
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`Because Nearmap has demonstrated Mr. Jurasek has unique, personal knowledge relevant
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`to its patent misuse defense, and no other circumstances exist which warrant preventing him
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`from being deposed, EagleView’s motion25 for a protective order to preclude the deposition of
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`Mr. Jurasek is denied.
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`DATED this 20th day of December, 2023.
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`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`25 (Doc. No. 346.)
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`7
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