`
` IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
`
`
`EAGLE VIEW TECHNOLOGIES, INC.,
`and PICTOMETRY INTERNATIONAL,
`CORP.,
`
`
`v.
`
`NEARMAP US, INC., NEARMAP
`AUSTRALIA PTY LTD, and NEARMAP
`PTY LTD,
`
`
`Plaintiffs,
`
`Defendants.
`
`MEMORANDUM DECISION AND
`ORDER OVERRULING PLAINTIFFS’
`OBJECTION TO THE MAGISTRATE
`JUDGE’S ORDER DENYING
`PLAINTIFF’S MOTION TO COMPEL
`PRODUCTION AND INSPECTION
`
`
`
`Case No. 2:21-CV-283 TS-DAO
`
`District Judge Ted Stewart
`
`
`
`This matter comes before the Court on Plaintiff Eagle View Technologies’ Objection to
`
`the Magistrate Judge’s Order Denying Eagle View’s Motion to Compel Production and
`
`Inspection. For the reasons discussed below, the Court will overrule Eagle View’s Objection.
`
`On February 7, 2024, Eagle View filed a Motion to Compel Production and Inspection
`
`seeking an order from the Magistrate Judge requiring Defendant Nearmap to “produce the
`
`accused camera systems, or in the alternative, to provide for their inspection, in the United
`
`States.”1 The Magistrate Judge denied the Motion, finding that Eagle View “had ample
`
`opportunity to conduct an inspection and the request [was] unreasonably duplicative.”2 The
`
`Magistrate Judge found it relevant that Nearmap had already produced the accused cameras for
`
`Eagle View’s inspection in Australia, where Eagle View’s attorneys inspected all the accused
`
`devices over a seven-hour period. Further, Nearmap argued that a second inspection in the
`
`
`1 Docket No. 379, at 2.
`2 Docket No. 395, at 2.
`
`
`
`1
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 444 Filed 05/16/24 PageID.22353 Page 2 of 3
`
`United States would either require significant disruption to ongoing operations, which are
`
`scheduled months in advance, or require Nearmap to ship the products Eagle View already
`
`inspected in Australia to the United States. Finally, the Magistrate Judge noted that Eagle View
`
`did not: “claim any deficiency in the inspection Nearmap afforded” them; “outline circumstances
`
`justifying a second inspection now;” or “describe any anticipated benefit from a second bite of
`
`this particular apple.”3 Eagle View filed a timely objection.
`
`I. STANDARD OF REVIEW
`
`Under 28 U.S.C. § 636(b)(1)(A) and Rule 72(a) of the Federal Rules of Civil Procedure,
`
`the Court reviews a magistrate judge’s orders on nondispositive matters under a clearly
`
`erroneous or contrary to law standard. In reviewing a magistrate judge’s nondispositive order, a
`
`district court must “modify or set aside any part of the order that is clearly erroneous or is
`
`contrary to law.”4 “The clearly erroneous standard . . . requires that the reviewing court affirm
`
`unless it on the entire evidence is left with the definite and firm conviction that a mistake has
`
`been committed.”5
`
`II. DISCUSSION
`
`Eagle View objects to the Magistrate Judge’s Order and asks that this Court enter an
`
`order setting aside the Magistrate Judge’s decision and granting Eagle View’s Motion. In
`
`support, Eagle View argues that “[t]here is no better evidence of infringement than the accused
`
`instrumentality itself,”6 and the Magistrate Judge’s “ruling ignores the heart of the issue—that
`
`
`
`3 Id. at 3.
`4 Fed. R. Civ. P. 72(a).
`5 Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting
`United States v. U.S. Gypsum Co., 333 U.S. 354, 395 (1948) (internal quotation marks omitted)).
`6 Docket No. 406, at 2.
`
`
`
`2
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 444 Filed 05/16/24 PageID.22354 Page 3 of 3
`
`Eagle View will be undeniably prejudiced unless [their] expert is able to inspect the accused
`
`systems.”7 Eagle View asserts an additional inspection is necessary to allow their expert to
`
`conduct a subsequent inspection. Eagle View argues that if the Court is not inclined to compel
`
`Nearmap to produce the accused devices, then the Court should enter an order precluding
`
`Nearmap from objecting to certain evidence related to the accused devices. Nearmap’s Response
`
`reiterates the burden that facilitating the requested inspection would cause them and urges the
`
`Court to overrule Eagle View’s objection.
`
`The Court has considered the filings, the Magistrate Judge’s Order, and the parties’
`
`briefing on the Objection. First, the Court finds that Eagle View’s Objection fails to show the
`
`Magistrate Judge’s Order is clearly erroneous or contrary to law. Second, the Court declines to
`
`enter any order regarding what may or may not be presented or objected to at trial at this time.
`
`Eagle View may raise this argument at the appropriate time should Nearmap raise such an
`
`objection. Accordingly, the Court will overrule Eagle View’s Objection to the Magistrate
`
`Judge’s Order.
`
`It is therefore
`
`III. CONCLUSION
`
`ORDERED that Plaintiffs’ Objection to the Magistrate Judge’s Order Denying Plaintiffs’
`
`Motion to Compel Production and Inspection (Docket No. 406) is OVERRULED.
`
`DATED this 16th day of May, 2024.
`
`BY THE COURT:
`
`
`
`Ted Stewart
`United States District Judge
`
`
`
`7 Id. at 5.
`
`
`
`
`
`3
`
`
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