`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`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.
`
`Civil Action No. 1:20-cv-393
`
`PMI/ALTRIA’S MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF,
`REYNOLDS’ MOTIONS TO SEAL
`
`
`
`
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 2 of 9 PageID# 30474
`
`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Local Civil Rule 5(C),
`
`Altria Client Services LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris
`
`Products S.A. (“PMP”) (collectively, “PMI/Altria”) respectfully submit this memorandum in
`
`response to, and in support of the following motions to seal (collectively, “Motions to Seal”) filed
`
`by RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor Company (collectively, “Reynolds”):
`
`1. Motion for Leave to Seal Reynold’s Reply in Support of Reynold’s Motions in
`Limine 1-3 and accompanying Exhibits 1-4 (Dkt. 1054);
`
`2. Motion for Leave to Seal Reynolds’s Reply in Support of Reynolds’s Motion
`in Limine No. 7 and accompanying Exhibit 2 (Dkt. 1061);
`
`3. Motion for Leave to Seal Reynolds’s Reply in Support of Reynolds’s Motion
`in Limine No. 9 and accompanying Exhibits 1-4 (Dkt. 1067);
`
`4. Motion for Leave to Seal Reynolds’s Reply in Support of Reynolds’s Motion
`in Limine No. 10 (Dkt. 1072);
`
`5. Motion for Leave to Seal Reynolds’s Reply in Support of Reynolds’s Motion
`in Limine No. 11 (Dkt. 1077);
`
`6. Motion for Leave to Seal Reynolds’s Reply in Support of Reynolds’s Motion
`to Exclude Certain Expert Opinions of Joseph C. McAlexander and
`accompanying Exhibit 1 (Dkt. 1083);
`
`7. Motion for Leave to Seal Reynolds’s Reply in Support of Reynolds’s Motion
`to Exclude the Testimony of Paul K. Meyer and Accompanying Exhibits 1-5
`(Dkt. 1088);
`
`The proposed sealed material identified above includes PMI/Altria’s confidential, financial,
`
`proprietary, and competitively sensitive business information that 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
`
`1
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 3 of 9 PageID# 30475
`
`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.
`
`The Supreme Court has held that “the 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). For
`
`example, 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 … may justify partial sealing of court
`
`records.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014). As the Fourth Circuit has
`
`explained, a court has the authority to seal court documents “if the public’s right of access is
`
`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
`
`II.
`
`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
`
`Reynolds moved for leave to file under seal the unredacted versions of memorandums
`
`submitted in support of Reynolds’ replies in support of its motions in limine and certain Daubert
`
`motions, as well as certain exhibits accompanying those motions. Specifically, the sensitive
`
`information that Reynolds moved for leave to file under seal, and to redact from a publicly filed
`
`version, includes proprietary and commercially sensitive information and documents of
`
`PMI/Altria and/or third parties.
`
`2
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 4 of 9 PageID# 30476
`
`Reynolds seeks to file under seal, and to file a redacted public version of:
`
`1. Reynold’s Reply in Support of Reynold’s Motions in Limine 1-3 (Dkt.
`1054);
`
`2. Reynold’s Reply in Support of Reynolds’s Motion in Limine No. 7 (Dkt.
`1061);
`
`3. Reynolds’s Reply in Support of Reynolds’s Motion in Limine No. 9 (Dkt.
`1067);
`
`4. Reynolds’s Reply in Support of Reynolds’s Motion in Limine No. 10 (Dkt.
`1072);
`
`5. Reynolds’s Reply in Support of Reynolds’s Motion in Limine No. 11 (Dkt.
`1077);
`
`6. Reynolds’s Reply in Support of Reynolds’s Motion to Exclude Certain
`Expert Opinions of Joseph C. McAlexander (Dkt. 1083); and
`
`7. Reynolds’s Reply in Support of Reynolds’s Motion to Exclude the
`Testimony of Paul K. Meyer and Accompanying Exhibit 5 (Dkt. 1088).1
`
`Reynolds further seeks to file entirely under seal:
`
`1. Exhibits 1-4 accompanying Reynold’s Reply in Support of Reynold’s Motions in
`Limine 1-3 (Dkt. 1054);
`
`2. Exhibit 2 accompanying Reynold’s Reply in Support of Reynolds’s Motion in
`Limine No. 7 (Dkt. 1061);
`
`3. Exhibits 1-4 accompanying Reynolds’s Reply in Support of Reynolds’s Motion in
`Limine No. 9 (Dkt. 1067);
`
`4. Exhibit 1 accompanying Reynolds’s Reply in Support of Reynolds’s Motion to
`Exclude Certain Expert Opinions of Joseph C. McAlexander (Dkt. 1083); and
`
`5. Exhibits 1-4 accompanying Reynolds’s Reply in Support of Reynolds’s Motion to
`Exclude the Testimony of Paul K. Meyer (Dkt. 1088).
`
`
`1 The memorandum and exhibits identified in Section II are collectively referred to as
`“Memorandum” and “Exhibits,” respectively.
`
`3
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 5 of 9 PageID# 30477
`
`III. ARGUMENT
`
`Although there is a general presumption that the public has the right to access documents
`
`in the files of the courts, this presumption may be overcome “if the public’s right of access is
`
`outweighed by competing interests.” Ashcraft, 218 F.3d at 302 (citation omitted); Stone v. Univ.
`
`of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To determine whether the interests in
`
`sealing the records outweigh the public’s right of access, a court must follow a three-step process:
`
`“(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.” Ashcraft, 218 F.3d at 302; see also Adams v. Object Innovation,
`
`Inc., No. 11-cv-272, 2011 WL 7042224, at *4 (Dec. 5, 2011), report & recommendation adopted,
`
`2012 WL 135428 (E.D. Va. Jan. 17, 2012). Here, three requirements are met.
`
`First, the public has received notice of the request to seal and has had a reasonable
`
`opportunity to object. Reynolds’ Sealing Motions were publicly docketed on February 25, 2022,
`
`in accordance with Local Civil Rule 5, and PMI/Altria now files this memorandum in support of
`
`sealing. Since the “public has had ample opportunity to object” to Reynolds’ Sealing Motions and
`
`“the Court has received no objections,” the first requirement under Ashcraft is met. 218 F.3d at
`
`302; see also GTSI Corp. v. Wildflower Int’l, Inc., No. 09-cv-123, 2009 WL 1248114, at *9 (E.D.
`
`Va. Apr. 30, 2009); U.S. ex rel Carter v. Halliburton Co., No. 10-cv-864, 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.”).
`
`Second, Reynolds 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.
`
`4
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 6 of 9 PageID# 30478
`
`Reynolds filed publicly redacted versions of their Memorandums, in addition to sealed versions,
`
`and redacted only the limited portions that Reynolds 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 PMI/Altria and/or third parties. Id. The
`
`information that Reynolds seeks to seal includes PMI/Altria’s confidential, proprietary, and
`
`competitively sensitive business information, and thus PMI/Altria could face harm if such
`
`information were to be released publicly. No procedure other than filing this information under
`
`seal is sufficient to preserve the confidential and sensitive nature of the information.
`
`Third, there is support for filing portions of Reynolds’ unredacted Memorandums and
`
`accompanying Exhibits under seal, with publicly filed versions containing strictly limited
`
`redactions. Reynolds’ Memorandums 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. 08-cv-371, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex
`
`rel. Carter, 2011 WL 2077799, at *3. As discussed, the portions of Reynolds’ Memorandums
`
`and Exhibits that are sealed concern confidential information of PMI/Altria and/or third parties.
`
`5
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 7 of 9 PageID# 30479
`
`IV. CONCLUSION
`
`For the foregoing reasons, PMI/Altria respectfully request that Reynolds’ Sealing
`
`Motions (Dkts. 1054, 1061, 1067, 1072, 1077, 1083 and 1088) be granted and that such sealing
`
`be maintained until further Order of this Court.
`
`6
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 8 of 9 PageID# 30480
`
`Dated: March 3, 2022
`
`
`
`
`
`
`
`By: /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 (pro hac vice)
`jamie.underwood@lw.com
`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
`
`Counsel for Defendants-Counterclaim Plaintiffs
`Altria Client Services LLC, Philip Morris USA Inc.,
`and Philip Morris Products S.A.
`
`7
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1118 Filed 03/03/22 Page 9 of 9 PageID# 30481
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 3rd day of March, 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/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`8
`
`