`
`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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`Civil Action No. 1:20-cv-393
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`[PROPOSED] ORDER GRANTING REYNOLDS’ MOTIONS TO SEAL
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`This matter is before the Court on the motions filed by RAI Strategic Holdings, Inc., and
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`R.J. Reynolds Vapor Company (collectively, “Reynolds”) to file certain memorandums and
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`accompanying exhibits under seal pursuant to Federal Rule of Civil Procedure 5.2(d) and Local
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`Civil Rule 5(C). See Dkts. 1054, 1061, 1067, 1072, 1077, 1083, and 1088 (collectively “Sealing
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`Motions”). Because the documents that Reynolds seeks to seal contain confidential, proprietary,
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`and competitively sensitive business information of Altria Client Services LLC (“ACS”), Philip
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`Morris USA Inc. (“PM USA”), and/or Philip Morris Products S.A. (“PMP”) (collectively,
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`“PMI/Altria”) and/or third parties, PMI/Altria filed a memorandum in support of Reynolds’
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`Sealing Motions.
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`Before this Court may seal documents, it must: “(1) provide public notice of the request
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`to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic
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`alternatives to sealing the documents, and (3) provide specific reasons and factual findings
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`Case 1:20-cv-00393-LO-TCB Document 1118-1 Filed 03/03/22 Page 2 of 4 PageID# 30483
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`supporting its decision to seal the documents and for rejecting the alternatives.” Ashcraft v.
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`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
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`of Reynolds’ Sealing Motions and its memorandum in support thereof, the Court hereby FINDS
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`as follows:
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`1.
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`The public has received notice of the request to seal and has had reasonable
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`opportunity to object. Reynolds’ Sealing Motions were publicly docketed in accordance with
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`Local Civil Rule 5. PMI/Altria filed a memorandum in support of sealing. The “public has had
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`ample opportunity to object” to Reynolds’ motions and, since “the Court has received no
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`objections,” the first requirement under Ashcraft is met. 218 F.3d at 302; see also GTSI Corp. v.
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`Wildflower Int’l, Inc., No. 09-cv-123, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S.
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`ex rel Carter v. Halliburton Co., No. 10-cv-864, 2011 WL 2077799, at *3 (E.D. Va. May 24,
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`2011) (“[T]he parties provided public notice of the request to seal that allowed interested parties
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`a reasonable opportunity to object—nearly two weeks.”).
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`2.
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`Reynolds seeks to seal and redact from the public record only information
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`designated by the parties as confidential. Reynolds filed publicly redacted versions of the
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`following documents and exhibits, in addition to a sealed version, and redacted only those limited
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`portions that Reynolds seeks to seal:
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`a. Reynold’s Reply in Support of Reynold’s Motions in Limine 1-3 (Dkt.
`1054);
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`b. Reynold’s Reply in Support of Reynolds’s Motion in Limine No. 7 (Dkt.
`1061);
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`c. Reynolds’s Reply in Support of Reynolds’s Motion in Limine No. 9 (Dkt.
`1067);
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`d. Reynolds’s Reply in Support of Reynolds’s Motion in Limine No. 10 (Dkt.
`1072);
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`2
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`Case 1:20-cv-00393-LO-TCB Document 1118-1 Filed 03/03/22 Page 3 of 4 PageID# 30484
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`e. Reynolds’s Reply in Support of Reynolds’s Motion in Limine No. 11 (Dkt.
`1077);
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`f. Reynolds’s Reply in Support of Reynolds’s Motion to Exclude Certain
`Expert Opinions of Joseph C. McAlexander (Dkt. 1083); and
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`g. Reynolds’s Reply in Support of Reynolds’s Motion to Exclude the
`Testimony of Paul K. Meyer and Accompanying Exhibit 5 (Dkt. 1088).
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`Reynolds further seeks to file entirely under seal:
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`h. Exhibits 1-4 accompanying Reynold’s Reply in Support of Reynold’s Motions in
`Limine 1-3 (Dkt. 1054);
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`i. Exhibit 2 accompanying Reynold’s Reply in Support of Reynolds’s Motion in
`Limine No. 7 (Dkt. 1061);
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`j. Exhibits 1-4 accompanying Reynolds’s Reply in Support of Reynolds’s Motion in
`Limine No. 9 (Dkt. 1067);
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`k. Exhibit 1 accompanying Reynolds’s Reply in Support of Reynolds’s Motion to
`Exclude Certain Expert Opinions of Joseph C. McAlexander (Dkt. 1083); and
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`l. Exhibits 1-4 accompanying Reynolds’s Reply in Support of Reynolds’s Motion to
`Exclude the Testimony of Paul K. Meyer (Dkt. 1088).1
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`This selective and narrow protection of confidential material constitutes the least drastic method
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`of shielding the information at issue. Adams v. Object Innovation, Inc., No. 11-cv-272, 2011 WL
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`7042224, at *4 (E.D. Va. Dec. 5, 2011) (“[The] proposal to redact only the proprietary and
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`confidential information, rather than seal the entirety of his declaration, constitutes the least
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`drastic method of shielding the information at issue.”). The public has no legitimate interest in
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`information that is confidential to Reynolds and PMI/Altria. Id. at *4. The information that
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`Reynolds seeks to seal includes confidential, proprietary, and competitively sensitive business
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`information of PMI/Altria and/or third parties, each of which could face harm if such information
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`were to be released publicly. Specifically, the sensitive information that Reynolds moves for
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`1 These memorandum and exhibits are collectively referred to as “Memorandums” and “Exhibits,”
`respectively, throughout.
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`3
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`Case 1:20-cv-00393-LO-TCB Document 1118-1 Filed 03/03/22 Page 4 of 4 PageID# 30485
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`leave to file under seal, and to redact from a publicly filed version, includes materials from
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`PMI/Altria and/or third parties, such as confidential business information falling under the scope
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`of the protective order.
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`3.
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`There is support for filing portions of the Memorandums and accompanying
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`Exhibits under seal, with a publicly filed version containing strictly limited redactions. These
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`Memorandums and accompanying Exhibits contain material that falls within the scope of the
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`stipulated protective order. Placing these materials under seal is proper because the public’s
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`interest in access is outweighed by a party’s interest in “preserving confidentiality” of the limited
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`amount of confidential information that is “normally unavailable to the public.” Flexible Benefits
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`Council v. Feltman, No. 08-cv-00371, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S.
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`ex rel. Carter, 2011 WL 2077799, at *3.
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`Therefore, based on the findings above, for good cause shown, it is hereby
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`ORDERED that the motion is GRANTED, and Reynolds is granted leave to file a
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`REDACTED version of the Memorandums and accompanying Exhibits;
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`And to file UNDER SEAL an unredacted version of Memorandums and accompanying
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`Exhibits;
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`And FURTHER ORDERED that the unredacted version of the Memorandums and
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`accompanying Exhibits shall remain SEALED until further order of the Court:
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`ENTERED this ____ day of __________, 2022.
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`Alexandria, Virginia
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`4
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`__________________________________
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