Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 1 of 7 PageID# 29123
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`Case No. 1:20-cv-00393-LO-TCB
`
`v.
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim Defendants,
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
`
`Defendants and Counterclaim Plaintiffs.
`
`
`
`REYNOLDS’S MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF, PM/ALTRIA’S
`MOTION TO SEAL EXHIBITS A-E TO PMI/ALTRIA’S OPPOSITION TO RJR’S MOTION IN
`
`
`
`LIMINE NO. 7
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 2 of 7 PageID# 29124
`
`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Rule 5(C) of the Local
`
`Civil Rules, RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor Company (collectively,
`
`“Reynolds”) respectfully submit this memorandum in response to, and in support of, Philip Morris
`
`Products S.A., Philip Morris USA Inc., and Altria Client Services, LLC’s (or collectively
`
`“PM/Altria”) Motion to Seal Exhibits A-E to PMI/Altria’s Opposition to RJR’s Motion in Limine
`
`No. 7 (Dkt. 983). The proposed sealed material includes Reynolds’s confidential, proprietary, and
`
`competitively sensitive business, financial, and design information and falls within the scope of
`
`the Stipulated Protective Order. (Dkt. 103.) These confidential materials should remain under seal.
`
`I.
`
`LEGAL STANDARD
`
`Local Civil Rule 5(C) requires that, when a party moves to file material under seal that
`
`another party has designated as confidential, “the party designating the material as confidential
`
`must file a response to the motion complying with requirements (2), (3), and (4) above along with
`
`a proposed order” that “shall recite the findings required by governing case law to support the
`
`proposed sealing.” Loc. R. Civ. P. 5(C). These requirements are: “(2) A statement why sealing is
`
`necessary, and why another procedure will not suffice, as well as appropriate evidentiary support
`
`for the sealing request; (3) References to the governing case law, an analysis of the appropriate
`
`standard to be applied for that specific filing, and a description of how that standard has been
`
`satisfied; [and] (4) Unless permanent sealing is sought, a statement as to the period of time the
`
`party seeks to have the matter maintained under seal and how the matter is to be handled upon
`
`unsealing.” Id.
`
`“[T]he right [of the public] to inspect and copy judicial records is not absolute.” Nixon v.
`
`Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Access to court records has been denied where
`
`“court files might have become a vehicle for improper purposes.” Id. In particular, a corporation’s
`
`“strong interest in preserving the confidentiality of its proprietary and trade-secret information …
`
`
`
`2
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 3 of 7 PageID# 29125
`
`may justify partial sealing of court records.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir.
`
`2014). As set forth in the Fourth Circuit’s decision in Ashcraft v. Conoco, Inc., a court has the
`
`authority to seal court documents “if the public’s right of access is outweighed by competing
`
`interests.” 218 F.3d 288, 302 (4th Cir. 2000). Before granting a motion to seal, a court must
`
`consider the following: “(1) provide public notice of the request to seal and allow interested parties
`
`a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents,
`
`and (3) provide specific reasons and factual findings supporting its decision to seal the documents
`
`and for rejecting the alternatives.” Id.; Adams v. Object Innovation, Inc., No. 3:11CV00272-REP-
`
`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report & recommendation adopted, 2012
`
`WL 135428 (E.D. Va. Jan. 17, 2012). All three requirements are met here.
`
`The materials that PM/Altria moves for leave to seal include highly confidential,
`
`proprietary, and competitively sensitive business, financial, and design information of Reynolds
`
`and should be kept under seal permanently for the reasons described below.
`
`II.
`
`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
`
`PM/Altria seeks leave to file under seal un-redacted versions of Exhibits A-E to
`
`PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7 (Dkt. 983). Specifically, the sensitive
`
`information that PM/Altria moves for leave to file under seal, and to redact from a publicly filed
`
`version, includes confidential, proprietary, and commercially sensitive business, financial, and
`
`design information of Reynolds and/or third parties:
`
`• Exhibit A, a letter from counsel;
`
`• Exhibit B, an excerpt of an expert report;
`
`• Exhibit C, an excerpt of an expert report;
`
`• Exhibit D, an excerpt of a deposition transcript; and
`
`
`
`3
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 4 of 7 PageID# 29126
`
`• Exhibit E, an excerpt of an expert report.
`
`III. ARGUMENT
`
`A. THE PUBLIC HAS HAD AMPLE NOTICE.
`
`The public has received notice of the request to seal and has had reasonable opportunity to
`
`object. PM/Altria’s sealing motion was publicly docketed in accordance with Local Civil Rule 5,
`
`and Reynolds now files this memorandum in support of sealing. The “public has had ample
`
`opportunity to object” to PM/Altria’s motion and, since “the Court has received no objections,”
`
`the first requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp. v. Wildflower
`
`Int’l, Inc., No. 1:09CV123 (JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); United
`
`States. ex rel. Carter v. Halliburton Co., No. 1:10CV864 (JCC/TCB), 2011 WL 2077799, at *3
`
`(E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that allowed
`
`interested parties a reasonable opportunity to object—nearly two weeks.”).
`
`
`
`B.
`
`PM/ALTRIA HAS SOUGHT THE LEAST DRASTIC MEASURES.
`
`PM/Altria seeks to seal and redact from the public record only information that the parties
`
`must keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) PM/Altria has filed
`
`publicly redacted versions of its Exhibits A-E to PMI/Altria’s Opposition to RJR’s Motion in
`
`Limine No. 7 (Dkt. 987), and has redacted only those limited portions it seeks to seal. This selective
`
`and narrow protection of confidential material constitutes the least drastic method of shielding the
`
`information at issue. Adams, 2011 WL 7042224, at *4 (The “proposal to redact only the proprietary
`
`and confidential information, rather than seal the entirety of his declaration, constitutes the least
`
`drastic method of shielding the information at issue.”). The public has no legitimate interest in
`
`information that is confidential to Reynolds. Id. The information that PM/Altria seeks to seal
`
`includes confidential, proprietary, and competitively sensitive business information of Reynolds
`
`and/or third parties, each of which could face harm if such information were to be released
`
`
`
`4
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 5 of 7 PageID# 29127
`
`publicly. No procedure other than filing this information under seal is sufficient to preserve the
`
`confidential and sensitive nature of the information.
`
` C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
`
`There is support for filing portions of Exhibits A-E to PMI/Altria’s Opposition to RJR’s
`
`
`
`Motion in Limine No. 7 under seal with publicly filed versions containing strictly limited
`
`redactions. Exhibits A-E to PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7 contain
`
`material that falls within the scope of the Stipulated Protective Order. (Dkt. 103.) Placing these
`
`materials under seal is proper because the public’s interest in access is outweighed by a party’s
`
`interest in “preserving confidentiality” of the limited amount of confidential information that is
`
`“normally unavailable to the public.” Flexible Benefits Council v. Feltman, No. 1:08CV00371
`
`(JCC), 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States ex rel. Carter, 2011 WL
`
`2077799, at *3. As noted, the portions of Exhibits A-E to PMI/Altria’s Opposition to RJR’s Motion
`
`in Limine No. 7 that are redacted concern confidential information of Reynolds and/or third parties.
`
`IV.
`
` CONCLUSION
`
`For the foregoing reasons, Reynolds respectfully request that PM/Altria’s Motion to Seal
`
`(Dkt. 983) be granted and that such sealing be maintained until further Order of this Court.
`
`
`
`5
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 6 of 7 PageID# 29128
`
`Dated: February 18, 2022
`
`
`
`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
`
`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
`
`Charles B. Molster, III Va. Bar No. 23613
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
`
`
`
`6
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1026 Filed 02/18/22 Page 7 of 7 PageID# 29129
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on this 18th day of February, 2022, a true and correct copy of the
`
`foregoing was served using the Court’s CM/ECF system, with electronic notification of such filing
`
`to all counsel of record.
`
`
`
`
`
`
`
`
`
`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
`
`
`
`
`
`
`