Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 1 of 7 PageID# 30451
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`
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`v.
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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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`
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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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`Case No. 1:20-cv-00393-LO-TCB
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`
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`REYNOLDS’S MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF, PM/ALTRIA’S
`MOTION TO SEAL PMI/ALTRIA’S REPLY IN SUPPORT OF DAUBERT MOTION TO
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`EXCLUDE DESIGN-AROUND TESTIMONY OF RJR’S EXPERT, DAVID CLISSOLD
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`

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`Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 2 of 7 PageID# 30452
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`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Rule 5(C) of the Local
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`Civil Rules, RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor Company (collectively,
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`“Reynolds”) respectfully submit this memorandum in response to, and in support of, Philip Morris
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`Products S.A., Philip Morris USA Inc., and Altria Client Services, LLC’s (collectively,
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`“PM/Altria”) Motion to Seal PMI/Altria’s Reply in Support of Daubert Motion to Exclude Design-
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`Around Testimony of RJR’s Expert, David Clissold (Dkt. 1104). The proposed sealed material
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`includes Reynolds’s confidential, proprietary, and competitively sensitive business, financial, and
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`design information and falls within the scope of the Stipulated Protective Order. (Dkt. 103.) These
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`confidential materials should remain under seal.
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`I.
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`LEGAL STANDARD
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`Local Civil Rule 5(C) requires that, when a party moves to file material under seal that
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`another party has designated as confidential, “the party designating the material as confidential
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`must file a response to the motion complying with requirements (2), (3), and (4) above along with
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`a proposed order” that “shall recite the findings required by governing case law to support the
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`proposed sealing.” Loc. R. Civ. P. 5(C). These requirements are: “(2) A statement why sealing is
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`necessary, and why another procedure will not suffice, as well as appropriate evidentiary support
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`for the sealing request; (3) References to the governing case law, an analysis of the appropriate
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`standard to be applied for that specific filing, and a description of how that standard has been
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`satisfied; [and] (4) Unless permanent sealing is sought, a statement as to the period of time the
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`party seeks to have the matter maintained under seal and how the matter is to be handled upon
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`unsealing.” Id.
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`“[T]he right [of the public] to inspect and copy judicial records is not absolute.” Nixon v.
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`Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Access to court records has been denied where
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`“court files might have become a vehicle for improper purposes.” Id. In particular, a corporation’s
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`Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 3 of 7 PageID# 30453
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`“strong interest in preserving the confidentiality of its proprietary and trade-secret information …
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`may justify partial sealing of court records.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir.
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`2014). As set forth in the Fourth Circuit’s decision in Ashcraft v. Conoco, Inc., a court has the
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`authority to seal court documents “if the public’s right of access is outweighed by competing
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`interests.” 218 F.3d 288, 302 (4th Cir. 2000). Before granting a motion to seal, a court must
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`consider the following: “(1) provide public notice of the request to seal and allow interested parties
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`a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents,
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`and (3) provide specific reasons and factual findings supporting its decision to seal the documents
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`and for rejecting the alternatives.” Id.; Adams v. Object Innovation, Inc., No. 3:11CV00272-REP-
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`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report & recommendation adopted, 2012
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`WL 135428 (E.D. Va. Jan. 17, 2012). All three requirements are met here.
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`The material that PM/Altria moves for leave to seal include highly confidential,
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`proprietary, and competitively sensitive business, financial, and design information of Reynolds
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`and should be kept under seal permanently for the reasons described below.
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`II.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`PM/Altria seeks leave to file under seal an un-redacted version of its Reply in Support of
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`Daubert Motion to Exclude Design-Around Testimony of RJR’s Expert, David Clissold (Dkt.
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`1104). Specifically, the sensitive information that PM/Altria moves for leave to file under seal,
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`and to redact from a publicly filed version, includes confidential, proprietary, and commercially
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`sensitive business, financial, and design information of Reynolds and/or third parties:
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`• PMI/Altria’s Reply in Support of Daubert Motion to Exclude Design-Around
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`Testimony of RJR’s Expert, David Clissold.
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`Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 4 of 7 PageID# 30454
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`III. ARGUMENT
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`A. THE PUBLIC HAS HAD AMPLE NOTICE.
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`The public has received notice of the request to seal and has had reasonable opportunity to
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`object. PM/Altria’s sealing motion was publicly docketed in accordance with Local Civil Rule 5,
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`and Reynolds now files this memorandum in support of sealing. The “public has had ample
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`opportunity to object” to PM/Altria’s motion and, since “the Court has received no objections,”
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`the first requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp. v. Wildflower
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`Int’l, Inc., No. 1:09CV123 (JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); United
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`States. ex rel. Carter v. Halliburton Co., No. 1:10CV864 (JCC/TCB), 2011 WL 2077799, at *3
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`(E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that allowed
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`interested parties a reasonable opportunity to object—nearly two weeks.”).
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`
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`B.
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`PM/ALTRIA HAS SOUGHT THE LEAST DRASTIC MEASURES.
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`PM/Altria seeks to seal and redact from the public record only information that the parties
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`must keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) PM/Altria has filed
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`a publicly redacted version of its PMI/Altria’s Reply in Support of Daubert Motion to Exclude
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`Design-Around Testimony of RJR’s Expert, David Clissold (Dkt. 1103), and has redacted only
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`those limited portions it seeks to seal. This selective and narrow protection of confidential material
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`constitutes the least drastic method of shielding the information at issue. Adams, 2011 WL
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`7042224, at *4 (The “proposal to redact only the proprietary and confidential information, rather
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`than seal the entirety of his declaration, constitutes the least drastic method of shielding the
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`information at issue.”). The public has no legitimate interest in information that is confidential to
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`Reynolds. Id. The information that PM/Altria seeks to seal includes confidential, proprietary, and
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`competitively sensitive business information of Reynolds and/or third parties, each of which could
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`face harm if such information were to be released publicly. No procedure other than filing this
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`Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 5 of 7 PageID# 30455
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`information under seal is sufficient to preserve the confidential and sensitive nature of the
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`information.
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` C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
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`There is support for filing portions of PMI/Altria’s Reply in Support of Daubert Motion to
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`
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`Exclude Design-Around Testimony of RJR’s Expert, David Clissold under seal with a publicly
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`filed version containing strictly limited redactions. PMI/Altria’s Reply in Support of Daubert
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`Motion to Exclude Design-Around Testimony of RJR’s Expert, David Clissold contains material
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`that falls within the scope of the Stipulated Protective Order. (Dkt. 103.) Placing these materials
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`under seal is proper because the public’s interest in access is outweighed by a party’s interest in
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`“preserving confidentiality” of the limited amount of confidential information that is “normally
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`unavailable to the public.” Flexible Benefits Council v. Feltman, No. 1:08CV00371 (JCC), 2008
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`WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States ex rel. Carter, 2011 WL 2077799, at
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`*3. As noted, the portions of PMI/Altria’s Reply in Support of Daubert Motion to Exclude Design-
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`Around Testimony of RJR’s Expert, David Clissold that are redacted concern confidential
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`information of Reynolds and/or third parties.
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`IV.
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` CONCLUSION
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`For the foregoing reasons, Reynolds respectfully request that PM/Altria’s Motion to Seal
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`(Dkt. 1104) be granted and that such sealing be maintained until further Order of this Court.
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`Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 6 of 7 PageID# 30456
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`Dated: March 3, 2022
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`Respectfully submitted,
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`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
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`/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
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`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
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`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
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`6
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`Case 1:20-cv-00393-LO-TCB Document 1116 Filed 03/03/22 Page 7 of 7 PageID# 30457
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 3rd day of March, 2022, a true and correct copy of the foregoing
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`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
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`counsel of record.
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`/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
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`