`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 IN PART AND
`DENYING IN PART MOTIONS TO SEAL
`RELATED TO NEARMAP’S
`DISCOVERY MOTION REGARDING
`OPENSOLAR AND CORELOGIC
`AGREEMENTS
`(DOC. NOS. 350, 357, 377 & 394)
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22359 Page 1 of 8
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
`
`
`
`
`In this patent infringement case, the parties have filed motions to seal1 portions
`
`of the briefing and exhibits related to Nearmap’s2 discovery motion to compel
`
`EagleView3 to produce agreements with OpenSolar and CoreLogic and related
`
`negotiation documents.4 For the reasons explained below, the motions to seal are
`
`granted in part and denied in part.
`
`
`1 (Doc. Nos. 350, 357, 377, & 394.)
`
`2 This order refers to Defendants Nearmap US, Inc., Nearmap Australia Pty Ltd, and
`Nearmap Ltd collectively as “Nearmap.”
`
`3 This order refers to Plaintiffs EagleView Technologies, Inc. and Pictometry
`International Corp. collectively as “EagleView.”
`
`4 (Nearmap’s Short Form Disc. Mot. to Compel Resps. to Reqs. for Produc. Nos. 41–46,
`47–49, and 51 (“Discovery Mot.”), Doc. No. 349 (redacted), Doc. No. 351 (sealed).)
`
`
`
`1
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22360 Page 2 of 8
`
`LEGAL STANDARDS
`
`“Courts have long recognized a common-law right of access to judicial records.”5
`
`Indeed, the District of Utah’s local rules provide that court records are “presumptively
`
`open to the public,” and sealing of court records is “highly discouraged.”6 Particularly
`
`“[w]here documents are used to determine litigants’ substantive legal rights, a strong
`
`presumption of access attaches.”7 However, the right of public access is “not
`
`absolute.”8 “[T]he presumption in favor of access to judicial records may be overcome
`
`where countervailing interests heavily outweigh the public interests in access.”9 “The
`
`burden is on the party seeking to restrict access to show some significant interest that
`
`outweighs the presumption.”10 Further, under the local rules, a motion to seal must be
`
`“narrowly tailored to seek protection of only the specific information that the party
`
`alleges is truly deserving of protection.”11
`
`“[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
`
`
`5 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)).
`
`6 DUCivR 5-3(a)(1).
`
`7 Colony Ins. Co., 698 F.3d at 1242 (citation omitted).
`
`8 Id. at 1241 (citation omitted).
`
`9 Id. (internal quotation marks omitted).
`
`10 Id. (internal quotation marks omitted).
`
`11 DUCivR 5-3(b)(2)(A).
`
`
`
`2
`
`
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`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22361 Page 3 of 8
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`harm a litigant’s competitive standing.’”12 Thus, documents containing “sensitive,
`
`proprietary information concerning [a party’s] business practices” may properly be
`
`sealed.13 And this rationale is even stronger where “the records could harm the
`
`competitive interests of third parties.”14
`
`ANALYSIS
`
`EagleView seeks to seal portions of each brief filed in connection with Nearmap’s
`
`discovery motion; exhibits containing the underlying agreements with OpenSolar and
`
`CoreLogic; and exhibits containing conferral emails between counsel regarding the
`
`discovery dispute.15 EagleView argues these documents contain confidential
`
`information regarding the business relationships between EagleView and the nonparties
`
`which would harm their competitive business interests if disclosed. Nearmap seeks to
`
`seal exhibits containing excerpts of EagleView’s infringement contentions, arguing they
`
`contain sensitive technical information regarding Nearmap’s products.16 All the motions
`
`to seal are unopposed.
`
`Each document at issue is addressed based on the standards outlined above.
`
`
`12 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)).
`
`13 Braun v. Medtronic Sofamor Danek, Inc., 719 F. App’x 782, 801 n.8 (10th Cir. 2017)
`(unpublished).
`
`14 Hershey v. ExxonMobil Oil Corp., 550 F. App’x 566, 574 (10th Cir. 2013)
`(unpublished).
`
`15 (See EagleView’s Mots. to Seal, Doc. Nos. 357, 394.)
`
`16 (See Nearmap’s Mot. to Seal, Doc. No. 350.) Nearmap’s other motion to seal, (Doc.
`No. 377), is based solely on EagleView’s confidentiality designations.
`
`
`
`3
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22362 Page 4 of 8
`
`1. Nearmap’s Discovery Motion17 and EagleView’s Opposition18
`
`For the most part, the redacted portions of Nearmap’s discovery motion contain
`
`only general descriptions of the agreements with OpenSolar and CoreLogic, and/or
`
`speculation from Nearmap as to what they might contain. While the motion mentions
`
`one specific term from the CoreLogic agreement, this term is referenced in the court’s
`
`public order on the discovery motion—thus, the existence of this term is already a
`
`matter of public record and is necessary to understand the basis for the court’s decision.
`
`Similarly, the redacted portions of EagleView’s opposition only generally describe what
`
`topics the agreements do not address. Overall, the redacted portions of the motion and
`
`opposition contain no confidential information regarding specific terms of the third-party
`
`agreements, and they are necessary to understand the parties’ arguments regarding the
`
`discovery dispute. Accordingly, EagleView has not articulated a countervailing interest
`
`which outweighs the public interest in access to the redacted portions. The unredacted
`
`versions of Nearmap’s discovery motion and EagleView’s opposition shall be unsealed.
`
`2. Infringement Contentions (Exhibits 4 and 5 to Nearmap’s Discovery Motion)19
`
`The infringement contention excerpts attached as Exhibits 4 and 5 to Nearmap’s
`
`discovery motion contain detailed, technical information regarding Nearmap products.
`
`Most of this information is irrelevant to the discovery dispute; the contentions are only
`
`referenced for the general proposition that EagleView claims indirect infringement by
`
`
`17 (Doc. No. 349 (redacted), Doc. No. 351 (sealed, unredacted version).)
`
`18 (Doc. No. 356 (redacted), Doc. No. 358 (sealed, unredacted version).)
`
`19 (Doc. Nos. 351-4 & 351-5.)
`
`
`
`4
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22363 Page 5 of 8
`
`Nearmap.20 Under these circumstances, Nearmap’s interest in protecting confidential
`
`technical information regarding its products outweighs the public interest in access to
`
`these exhibits at this stage. Exhibits 4 and 5 shall remain sealed until otherwise
`
`ordered. This ruling may be revisited if the infringement contentions are later used to
`
`determine the parties’ substantive legal rights.
`
`3. Conferral Emails (Exhibits 3 and 6 to Nearmap’s Discovery Motion)21
`
`EagleView does not identify what information it considers confidential in the
`
`conferral emails between counsel. Some emails in Exhibit 3 reference the names and
`
`dates of the third-party agreements, but no details regarding the terms of the
`
`agreements are discussed in the exhibits. EagleView has not demonstrated the
`
`remainder of Exhibit 3, or any portion of Exhibit 6, warrants sealing. Thus, Exhibit 622
`
`will be unsealed. If EagleView seeks to seal the names and dates of the agreements,
`
`EagleView must file a redacted version of Exhibit 3 redacting only that information within
`
`seven days. If no redacted version is filed, Exhibit 323 will also be unsealed in its
`
`entirety without further notice.
`
`
`20 (See Discovery Mot. 2, Doc. No. 349.)
`
`21 (Doc. Nos. 351-3 & 351-6.)
`
`22 (Doc. No. 351-6.)
`
`23 (Doc. No. 351-3.)
`
`
`
`5
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22364 Page 6 of 8
`
`4. OpenSolar and CoreLogic Agreements (Exhibit 7 to Nearmap’s Discovery Motion
`and Exhibits 8 and 9 to Nearmap’s Reply)24
`
`EagleView asserts the OpenSolar and CoreLogic agreements contain “highly
`
`confidential business information that, if made public, would harm both EagleView and
`
`non-parties OpenSolar and CoreLogic’s competitive business interests.”25 EagleView
`
`also notes these agreements contain confidentiality provisions.26 Where these exhibits
`
`were filed in connection with a discovery dispute rather than dispositive motions, and
`
`the terms relevant to the discovery dispute are discussed in the public briefing and the
`
`court’s public order, the public interest in access to the agreements themselves is
`
`minimal at this stage. This interest is outweighed by the countervailing interest in
`
`protecting EagleView’s and the nonparties’ confidential business information.
`
`Therefore, Exhibits 7, 8, and 9 shall remain sealed until otherwise ordered. This ruling
`
`may be revisited if the agreements are later used to determine the parties’ substantive
`
`legal rights.
`
`5. Nearmap’s Reply27
`
`Two portions of Nearmap’s reply directly quote from and describe specific terms
`
`of the third-party agreements: the redacted portion of page 1 and the redacted portion of
`
`the last paragraph of page 2. Where the relevant terms of the agreements are
`
`summarized elsewhere in the public portions of the briefing and the court’s public order,
`
`
`24 (Doc. Nos. 351-7, 378-1, & 378-2.)
`
`25 (EagleView’s Mot. to Seal 3, Doc. No. 357.)
`
`26 (Id.)
`
`27 (Doc. No. 376 (redacted), Doc. No. 378 (sealed, unredacted version).)
`
`
`
`6
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`
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`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22365 Page 7 of 8
`
`these direct quotations and specific descriptions of terms are not necessary to
`
`understand the parties’ arguments or the court’s ruling. Under these circumstances, the
`
`countervailing confidentiality interests articulated by EagleView outweigh the public
`
`interest in access to the redacted information.
`
`The other redacted portions of Nearmap’s reply do not warrant sealing. They
`
`contain only general descriptions or characterizations of the agreements and related
`
`communications. Accordingly, Nearmap is ordered to file a new, redacted version of its
`
`reply, retaining only the redactions on page 1 and the last paragraph of page 2. The
`
`unredacted version of the reply shall remain sealed until otherwise ordered.
`
`6. EagleView’s Proposed Sur-reply28
`
`EagleView moved for leave to file a sur-reply in opposition to Nearmap’s
`
`discovery motion,29 and it attached a proposed sur-reply with redactions to the portions
`
`discussing the third-party agreements. Because EagleView’s motion for leave was
`
`denied30 and it was not permitted to file the proposed sur-reply, the public interest in
`
`access to the redacted information therein is minimal and is outweighed by EagleView’s
`
`confidentiality interests set forth above. The proposed sur-reply shall remain sealed
`
`until otherwise ordered.
`
`
`28 (Doc. No. 376 (redacted), Doc. No. 378 (sealed, unredacted version).)
`
`29 (See Doc. No. 383.)
`
`30 (See Doc. No. 387.)
`
`
`
`7
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`
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`Case 2:21-cv-00283-TS-DAO Document 447 Filed 09/10/24 PageID.22366 Page 8 of 8
`
`CONCLUSION
`
`The motions to seal31 documents related to Nearmap’s discovery motion
`
`regarding the OpenSolar and CoreLogic agreements are granted in part and denied in
`
`part, and the court ORDERS as follows:
`
`1. The clerk is directed to unseal docket numbers 351 (main document), 351-6,
`
`and 358. These are the unredacted versions of Nearmap’s discovery motion
`
`regarding the OpenSolar and CoreLogic agreements, Exhibit 6 thereto, and
`
`EagleView’s opposition.
`
`2. EagleView may file a new, redacted version of Exhibit 3 to Nearmap’s
`
`discovery motion consistent with this order within seven days. If no such
`
`motion is filed, Exhibit 332 will be unsealed without further notice.
`
`3. Nearmap is ordered to file a new, redacted version of its reply33 consistent
`
`with this order within seven days.
`
`DATED this 9th day of September, 2024.
`
`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
`
`
`31 (Doc. Nos. 350, 357, 377, & 394.)
`
`32 (Doc. No. 351-3.)
`
`33 (Doc. No. 376 (redacted).)
`
`
`
`8
`
`
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