Case 1:20-cv-00393-LO-TCB Document 1232 Filed 05/19/22 Page 1 of 2 PageID# 32337
`Maximilian A. Grant
`555 Eleventh Street, N.W., Suite 1000
`Direct Dial: +1.202.637.2267
`Washington, D.C. 20004-1304
`max.grant@lw.com
`Tel: +1.202.637.2200 Fax: +1.202.637.2201
`www.lw.com
`
`May 19, 2022
`
`VIA EFC FILING
`
`The Honorable Liam O’Grady
`United States District Judge
`Albert V. Bryan U.S. Courthouse
`401 Courthouse Square
`Alexandria, Virginia 22314
`
`FIRM / AFFILIATE OFFICES
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`
`Re:
`
`RAI Strategic Holdings, Inc. et al. v. Altria Client Services LLC, et al.,
`No. 1:20-cv-393-LO-TCB (E.D. Va.)
`
`Dear Judge O’Grady:
`
`This replies to Reynolds’ May 17th letter (Dkt. 1230), responding to the May 13, 2022
`letter jointly submitted by PMI/Altria, Google/Samsung/Waze, and AGIS to Your Honor and
`Judge Gilstrap requesting the two Courts’ assistance with trial conflicts for two experts, Joseph
`McAlexander and Paul Meyer (Dkt. 1227).
`
`First, Reynolds asserts that “Mr. McAlexander and Mr. Meyer both are available to testify
`early in the week of June 6.” Dkt. 1230 at 1. That is incorrect. Given the direct scheduling
`conflicts described in the May 13th letter, even if both experts testified earlier in PMI/Altria’s
`case-in-chief, the conflict remains.
`
`Second, Reynolds’ attempt to blame PMI/Altria for not previously raising the conflicts
`with the Court ignores the record.1 As the PMI/Altria/Google/Samsung/Waze/AGIS letter
`explained but Reynolds ignored (Dkt. 1227 at 1-2), (1) the AGIS case was not definitively set for
`trial until after this case was set for June 6th and (2) there was a motion pending in the AGIS case
`to move the June 6th trial date that was only denied by Judge Gilstrap on May 2nd. Google, Dkt.
`371 at 2. Only after Judge Gilstrap denied that motion did the conflicts become ripe and PMI/Altria
`promptly raised it with the Court (after conferring with counsel for both parties in the AGIS case).
`
`Third, Reynolds’ argument that starting trial on June 7th, rather than June 6th, would
`somehow “push th[e] end date out by four days” (from June 16th to June 20th) is false. Dkt. 1230
`at 2-3. PMI/Altria understands from the Court’s clerk that the Court plans to conduct trial on
`Friday, June 10th. Thus, even if trial begins on June 7th, it will end no later than Reynold’s
`expected June 16th end date. Moreover, because the Court set the eight-day trial before Reynolds
`
`1 The Court may recall that the scheduling conflict surrounding the Court’s preferred trial dates
`were imposed by the three-week vacation (from Italy to the US) of Reynolds’ retired corporate
`representative, Dr. Figlar. See Dkt. 1135 (2/7/22 Hr’g Tr.) at 5:1-8.
`
`

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`Case 1:20-cv-00393-LO-TCB Document 1232 Filed 05/19/22 Page 2 of 2 PageID# 32338
`May 18, 2022
`Page 2
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`agreed not to challenge the ’545 and ’556 patents as anticipated or obvious (see Dkt. 965 at 3),
`PMI/Altria expects that the trial may well be completed in less than the eight trial days.
`
`Regardless, Reynolds’ proposal—having Mr. McAlexander and Mr. Meyer testify out-of-
`order—is a second potential solution. If Messrs. McAlexander and Meyer testify on Monday, June
`13th, that should resolve the conflicts. That may require the Court to hold open PMI/Altria case-
`in-chief and require Reynolds to start its case-in-chief before PMI/Altria rests, but having
`witnesses testify out of order is something this Court has done to accommodate witness conflicts
`in the past. See, e.g., TecSec Inc. v. Adobe Inc., No. 1:10-cv-115, Dkt. 1321 (12/07/18 Hr’g Tr.)
`at 3:10-17 (“THE COURT: All right. Well, I mean, in every case I have there is -- or almost every
`case, there is witness availability that is an issue. For medical reasons, for lots of different reasons
`witnesses are called out of order. Juries don’t have a problem of understanding why that happens.
`I will explain it and make it clear that this is – you’re not sponsoring that witness[.]”). PMI/Altria
`is amenable to that approach, which would resolve the conflicts.
`
`We remain in close contact with both sides’ lawyers in the AGIS case and will continue to
`work cooperatively with them to keep both Chambers apprised of any developments.
`
`
`
`Sincerely,
`
`/s/ Maximillian A. Grant
`Maximillian A. Grant
`of LATHAM & WATKINS LLP
`
`Counsel for Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris Products S.A.
`
`/s/ Elizabeth S. Weiswasser
`Elizabeth S. Weiswasser
`of WEIL, GOTSHAL & MANGES LLP
`
`Counsel for Plaintiff Altria Client Services LLC
`
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