Eagle View Techs. v. Nearmap U.S. Inc.

Full title: EAGLE VIEW TECHNOLOGIES, INC., and PICTOMETRY INTERNATIONAL CORP.…

Court: United States District Court, District of Utah

Date published: Jun 9, 2023

2:21-cv-00283 (D. Utah Jun. 9, 2023)

Opinion

2:21-cv-00283

06-09-2023

EAGLE VIEW TECHNOLOGIES, INC., and PICTOMETRY INTERNATIONAL CORP., Plaintiffs, v. NEARMAP US, INC.; NEARMAP AUSTRALIA PTY LTD; and NEARMAP LTD, Defendants.

Daphne A. Oberg United States Magistrate Judge

Ted Stewart District Judge

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

Daphne A. Oberg United States Magistrate Judge

In this patent infringement case, the parties have filed motions to seal¹various documents related to Plaintiffs Eagle View Technologies, Inc. and Pictometry International Corp.'s (collectively, “EagleView”) motion to amend final infringement contentions.²For 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.)

LEGAL STANDARDS

“Courts have long recognized a common-law right of access to judicial records.”³However, 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

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).

“[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.'”⁸Thus, documents containing “sensitive, proprietary information concerning [a party's] business practices” may properly be sealed.⁹And this rationale is even stronger where “the records could harm the competitive interests of third parties.”¹⁰

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 Fed.Appx. 782, 801 n.8 (10th Cir. 2017) (unpublished).

10 Hershey v. ExxonMobil Oil Corp., 550 Fed.Appx. 566, 574 (10th Cir. 2013) (unpublished).

ANALYSIS

A. Documents Nearmap Seeks to Seal

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.¹¹The exhibits are Nearmap's responses to certain interrogatories,¹²internal Nearmap emails,¹³a “SkyMeasure” roof report,¹⁴ Nearmap's internal roofing industry analysis,¹⁵and a partial transcript from an October 31, 2022 hearing on a discovery motion.¹⁶Nearmap 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.¹⁷EagleView moved to seal these documents solely because Nearmap designated them “attorneys' eyes only,”¹⁸and it did not oppose Nearmap's motions to seal them.

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, 1943 (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.)

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 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.¹⁹Indeed, 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.²¹Thus, the majority of the briefing and the entirety of the order remain publicly accessible. Under these 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

19 (See Doc. Nos. 192, 201, 230.)

20 (See Doc. No. 201.)

21 (See Doc. Nos. 206, 305.)

22 This determination may be revisited if the documents are later used to determine the parties' substantive legal rights.

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”).²³EagleView 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.²⁴EagleView 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

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.)

EagleView has demonstrated these documents warrant sealing. The court has previously determined the Verisk settlement agreement and related negotiation communications warrant sealing,²⁶based on detailed information regarding confidentiality and competitive harm provided by both EagleView and Verisk in a prior motion to seal.²⁷Similarly, the integration agreement contains confidential business information of both EagleView and Verisk which could cause 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.²⁸Thus, 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

26 (See Doc. No. 307.)

27 (See EagleView Renewed Mot. to Seal, Doc. Nos. 236 (redacted), 238 (sealed).)

28 (See Doc. No. 305.)

29 This determination may be revisited if the documents are later used to determine the parties' substantive legal rights.

C. Excerpt of Dormeyer Deposition Transcript

Exhibit 5 to EagleView's reply is an excerpt of EagleView officer Piers Dormeyer's deposition transcript.³⁰EagleView moved to seal this exhibit solely because it contains discussion of information which EagleView believed Nearmap had designated “attorneys' eyes only.”³¹But although Nearmap moved to seal another exhibit to the reply,³²Nearmap 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.³³EagleView's motion to seal at docket number 231 is denied as to this exhibit only.

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”).

CONCLUSION

EagleView's motion to seal at docket number 231 is denied only as to exhibit 5 to EagleView's reply in support of the motion to amend final infringement contentions. The clerk of court is directed to unseal this exhibit.³⁴

34 (Doc. No. 232-5.)

The motion at docket number 231 is otherwise granted, and the motions to seal at docket numbers 193, 202, 207, 217, and 235 are also granted. All other documents³⁵at issue shall remain sealed until otherwise ordered.

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).