Case 1:20-cv-00393-LO-TCB Document 1015 Filed 02/11/22 Page 1 of 6 PageID# 28631
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim
`Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
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`Defendants and Counterclaim
`Plaintiffs.
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`Civil Action No. 1:20-cv-33-LO-TCB
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`
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`MEMORANDUM IN SUPPORT OF PMI/ALTRIA’S MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Altria Client Services, LLC, Philip Morris USA Inc.,
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`and Philip Morris Products S.A. (collectively, “PMI/Altria”) respectfully move the Court for leave
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`to file their Opposition to RJR’s Daubert Motion to Exclude the Testimony of Stacy Ehrlich and
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`Exhibits A, D, F-G, J and M-O thereto under seal.
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`PMI/Altria also respectfully move for leave to file publicly a redacted version of the
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`Opposition that omits confidential information. All of the materials PMI/Altria seek to file under
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`seal have been designated by at least one party as confidential under the stipulated protective order.
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`PMI/Altria respectfully seek leave to file the following documents under seal:
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`• An unredacted version of their Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich; and
`• Exhibit A to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
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`Testimony of Stacy Ehrlich, which are excerpts from the confidential Opening
`Expert Report of Stacy Ehrlich.
`• Exhibit D to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the confidential deposition
`transcript of Stacy Ehrlich.
`• Exhibit F to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the confidential ITC Expert
`Report of Nisha Mody.
`• Exhibit G to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the confidential ITC
`deposition transcript of James Figlar.
`• Exhibit J to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the confidential Opening
`Expert Report of Paul Meyer.
`• Exhibit M to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the confidential deposition
`transcript of David Clissold.
`• Exhibit N to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the confidential Rebuttal
`Expert Report of David Clissold.
`• Exhibit O to PMI/Altria’s Opposition to RJR’s Daubert Motion to Exclude the
`Testimony of Stacy Ehrlich, which are excerpts from the deposition transcript of
`Ryan Sullivan.
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`II.
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`ARGUMENT
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`Although there is a general presumption that the public has the right to access documents
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`in the files of the courts, this presumption may be overcome “if the public’s right of access is
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`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000)
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`(citation omitted); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To
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`determine whether the interests in sealing the records outweigh the public’s right of access, a court
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`must follow a three-step process: (1) provide public notice of the request to seal and allow
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`interested parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing
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`the documents; and (3) articulate specific reasons and factual findings supporting its decision to
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`seal. Ashcraft, 218 F.3d at 302; Adams v. Object Innovation, Inc., No. 11-cv-00272, 2011 WL
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`7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL 135428
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`(E.D. Va. Jan. 17, 2012). All three requirements are satisfied here.
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`First, the public has received notice of the request to seal and will have a reasonable
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`opportunity to object. In accordance with Local Civil Rule 5 procedures, this sealing motion was
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`publicly docketed, satisfying the first requirement. RJR will have an opportunity to respond, and
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`once the “public has had ample opportunity to object” to PMI/Altria’s motion and “the Court has
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`received no objections,” the first Ashcraft requirement may be deemed satisfied. See GTSI Corp.
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`v. Wildflower Int’l, Inc., No. 09-cv-00123, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009);
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`U.S. ex rel. Carter v. Halliburton Co., No. 10-cv-00864, 2011 WL 2077799, at *3 (E.D. Va. May
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`24, 2011) (“[T]he parties provided public notice of the request to seal that allowed interested
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`parties a reasonable opportunity to object—nearly two weeks.”).
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`Second, PMI/Altria seek to seal and to redact from the public record only information that
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`the parties must keep confidential pursuant to the stipulated protective order. PMI/Altria will file
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`publicly a redacted version of its Opposition in addition to a sealed version. Moreover, the exhibit
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`filed under seal contains competitively sensitive information the disclosure of which would cause
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`harm. This selective and narrow protection of confidential material constitutes “the least drastic
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`method of shielding the information at issue.” Adams, 2011 WL 7042224, at *4. The public has
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`no legitimate interest in information that is confidential to PMI/Altria and RJR. See Adams, 2011
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`WL 7042224, at *4 (“[T]here is no legitimate public interest in disclosing the proprietary and
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`confidential information of [the defendant] . . . and disclosure to the public could result in
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`significant damage to the company.”). The information that PMI/Altria seek to seal and redact
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`includes confidential, proprietary, and competitively sensitive business information of the parties
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`and/or third parties, each of which could face harm if such information were released publicly.
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`Third, there is support for filing portions of PMI/Altria’s Opposition under seal, with a
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`publicly filed version containing strictly limited redactions. As an initial matter, the stipulated
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`protective order requires that this information remain confidential. And the redacted portions of
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`the Opposition only pertain to this confidential information. Moreover, the exhibits filed under
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`seal contain information that the parties have designated as competitively sensitive business
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`information. Sealing these materials is therefore proper because the public’s interest in access is
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`outweighed by a party’s interest in “preserving confidentiality” of limited amounts of confidential
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`information that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman,
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`No. 08-cv-00371, 2008 WL 4924711, at *1; U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`III. CONCLUSION
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`PMI/Altria respectfully request that the Court grant this Motion and enter the attached
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`proposed Order.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 1015 Filed 02/11/22 Page 5 of 6 PageID# 28635
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`Dated: February 11, 2022
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`Respectfully submitted,
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`
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`Jamie Underwood
`jamie.underwood@lw.com (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for Plaintiffs Altria Client Services
`LLC, Philip Morris USA Inc., and Philip
`Morris Products S.A.
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`Case 1:20-cv-00393-LO-TCB Document 1015 Filed 02/11/22 Page 6 of 6 PageID# 28636
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 11th day of February, 2022, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such filing
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`to all counsel of record:
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
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`Counsel for Plaintiffs Altria Client Services
`LLC, Philip Morris USA Inc., and Philip
`Morris Products S.A.
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`6
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