`
`EAGLE VIEW TECHNOLOGIES, INC.; and
`PICTOMETRY INTERNATIONAL CORP.,
`
`
`Plaintiffs,
`
`
`v.
`
`NEARMAP US, INC.,
`
`
`Defendant.
`
`
`MEMORANDUM DECISION AND
`ORDER DENYING PLAINTIFFS’
`SHORT FORM MOTION TO COMPEL
`PRODUCTION AND INSPECTION OF
`CAMERA SYSTEMS
`(DOC. NO. 379)
`
`Case No. 2:21-cv-00283
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`Case 2:21-cv-00283-TS-DAO Document 395 Filed 02/28/24 PageID.19032 Page 1 of 4
`
`
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
`
`
`
`
`In this patent infringement case, Plaintiffs Eagle View Technologies, Inc. and Pictometry
`
`International Corp. (collectively, “EagleView”) moves to compel Defendant Nearmap US, Inc.
`
`(“Nearmap”) to produce the accused devices (camera systems) for inspection, in the United
`
`States.1 In response, Nearmap argues the requested discovery is both duplicative of inspections
`
`previously conducted in Australia and overly burdensome.2 As discussed further below, the
`
`motion is denied because EagleView had ample opportunity to conduct an inspection and its
`
`request is unreasonably duplicative.3
`
`
`1 (Pls.’ Short-Form Mot. to Compel Produc. and Inspection (“Mot.”), Doc. No. 379 (sealed,
`unredacted version available at Doc. No. 381).)
`
`2 (Def.’s Opp’n to Pls.’ Short-Form Mot. to Compel Produc. and Inspection of Nearmap’s
`Camera Systems in the United States, (“Opp’n”) Doc. No. 388 (sealed, unredacted version
`available at Doc. No. 390).)
`
`3 Pursuant to Rule 37-1 of the Local Rules of Civil Practice, the motion is decided based on the
`parties’ briefing. See DUCivR 37-1(b)(5)(B).
`
`
`
`1
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 395 Filed 02/28/24 PageID.19033 Page 2 of 4
`
`ANALYSIS
`
`In support of its motion, EagleView argues that, in patent cases like this one, the accused
`
`devices are the most relevant subject of discovery.4 While acknowledging Nearmap previously
`
`afforded EagleView the opportunity to inspect the accused devices in Australia, EagleView now
`
`seeks a second opportunity to inspect them in the United States.5 Finally, EagleView contends
`
`Nearmap has not adequately shown the proposed inspection creates any undue burden.6
`
`In opposition, Nearmap argues it already produced the accused devices for inspection in
`
`Australia in October 2023—when three EagleView attorneys inspected exemplars of all accused
`
`devices over a seven-hour period.7 Nearmap contends the request for a second inspection in the
`
`U.S. requires Nearmap to either significantly disrupt ongoing operations, many of which are
`
`conducted by third parties and scheduled months in advance, or ship the devices EagleView
`
`already inspected from Australia to the U.S.8 Finally, Nearmap observes, “EagleView cannot
`
`articulate what additional information it would obtain from another inspection in the U.S. of the
`
`same camera systems.”9
`
`EagleView’s motion is denied because EagleView had ample opportunity to conduct an
`
`inspection and the request is unreasonably duplicative. Rule 26 of the Federal Rules of Civil
`
`4 (Mot. 2, Doc. No. 379.)
`
`
`
`5 (See id.)
`
`6 (Id. at 4.)
`
`7 (Opp’n. 1, Doc. No. 388.)
`
`8 (Id. at 2–3.)
`
`9 (Id.)
`
`
`
`2
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 395 Filed 02/28/24 PageID.19034 Page 3 of 4
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`Procedure requires the court to “limit the frequency or extent of discovery” if “the discovery
`
`sought is unreasonably cumulative or duplicative” or “the party seeking discovery has had ample
`
`opportunity to obtain the information by discovery in the action.”10 As Nearmap asserts, and
`
`EagleView admits, EagleView not only had an opportunity to inspect all accused devices, but
`
`actually conducted a lengthy inspection.11 EagleView does not claim any deficiency in the
`
`inspection Nearmap afforded only a few months ago, nor does EagleView outline circumstances
`
`justifying a second inspection now. Thus, EagleView had ample opportunity to obtain the
`
`information that can be gleaned from an inspection.
`
`Additionally, EagleView does not describe any anticipated benefit from a second bite of
`
`this particular apple. EagleView makes several arguments highlighting the importance of
`
`inspecting accused devices and also cites the local patent rule’s requirement that accused
`
`instrumentalities must be produced during discovery.12 But EagleView fails to articulate any
`
`information it hopes to glean from its proposed second inspection of the accused devices. On the
`
`other hand, Nearmap describes several specific burdens imposed by EagleView’s proposal,
`
`including costs, logistics, and business interruptions.
`
`In the absence of an identified benefit from the proposed duplicative inspection, and
`
`given the burden on Nearmap of a second inspection, EagleView’s request is unreasonably
`
`
`10 Fed. R. Civ. P. 26(b)(2)(C).
`
`11 (Mot. 2, Doc. No. 379; Opp’n 1, Doc. No. 388; see also Ex. 2 to Mot., Def.’s First Resp. to
`Pls.’ Sixth Set of Reqs. for Produc. (Nos. 93–96) and First Set of Reqs. for Inspection (Nos. 1–4)
`4, 8, 12, 16, Doc. No. 381-2 (sealed).)
`
`12 (Mot. 2–3, Doc. No. 379.)
`
`
`
`3
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 395 Filed 02/28/24 PageID.19035 Page 4 of 4
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`duplicative. In short, while EagleView is entitled to inspect the accused devices, it has already
`
`done so. It is not entitled to inspect the accused devices repeatedly, absent sufficient
`
`justification, which it has not offered here.
`
`CONCLUSION
`
`Because the requested discovery is unreasonably duplicative, EagleView’s motion13 is
`
`denied.
`
`DATED this 28th day of February, 2024.
`
`BY THE COURT:
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
`
`13 (Doc. No. 379.)
`
`
`
`
`
`4
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`
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