Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 1 of 4 PagelD# 32618
`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 1 of 4 PageID# 32618
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`RAI STRATEGIC HOLDINGS,INC., et.al.,
`
`Plaintiffs,
`
`Vv.
`
`ALTRIA CLIENT SERVICES, LLC,et. al.,
`
`Defendants.
`
`NemNoweNeenNeeeeeNeue”Nee”See”one”Ne”Ne”
`
`ORDER
`
`Civil Action No. 1:20-cv-393
`Hon. Liam O’Grady
`
`The Parties have made several Motions to the Court including an Objection to Judge
`
`Buchanan’s ruling on a Motion to Show Cause (Dkt. 1191); Motion to Limit Prior art
`
`Combinations (Dkt. 1210); and a Motion to Amendthe Identification of Claims (Dkt. 1221). The
`
`Parties have also brought several other issues to the Court’s attention. The Parties have fully
`
`briefed the Motions and held oral arguments to inform the Court regarding the issues to be
`
`addressed beforethe start oftrial.
`
`For the sake of clarity, at trial Phillip Morris USA, Phillip Morris Products S.A. and
`
`Altria Client Services will be referred to as the “Plaintiffs.” RAI Strategic Holdings Inc. and R.J.
`
`Reynolds Vapor Companywill be referred to as the “Defendants.”
`
`1. The Objection to Judge Buchanan's ruling
`
`The Plaintiffs have objected to Judge Buchanan’s denial of their Motion for Sanctions.
`
`The Plaintiffs previously moved for sanctions after several documents wererecently disclosed to
`
`the Court on March 18, 2022. These documents reflect that negotiations between Reynolds and
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 2 of 4 PagelD# 32619
`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 2 of 4 PageID# 32619
`
`third-party Fontem contained several references to a proposed 5.25% royalty rate to license
`
`patents that are comparable to the patents at issue in the present case. See Dkt. 1195 at 1-2. The
`
`Defendants previously moved to exclude the opinion of the Plaintiffs’ damages expert on the
`
`basis that there was no factual support that this comparable technology could be licensed at a
`
`5.25% royalty rate. Dkt. 892 at 17-19. However, based on a review of the record and the
`
`representations made to the Court, it is clear that the Defendants’ law firm, Jones Day, had
`
`access to these documents as early as June of 2021 and these documents did support a
`
`contemplated 5.25% royalty rate for a proposed license. After obtaining these documents, Jones
`
`Day did not produce the documents in responseto the Plaintiffs’ discovery requests and went on
`
`to make several representationsin their written briefs and oral arguments that were at best clearly
`
`inaccurate if not intentionally misleading. The Court finds that the existence of these documents
`
`directly contradicts the series of representations made by the Defendants.
`
`The Court has reviewed Judge Buchanan’s ruling and the written transcripts of the
`
`proceedings before her on the Motion for Sanctions. The Court does not find that there was any
`
`indication that Judge Buchanan misapplied the law. Judge Buchanan was also well within the
`
`exercise of her discretion to deny the Plaintiffs’ Motion for Sanctions. As there was no abuse of
`
`discretion, the Court will AFFIRM Judge Buchanan’s ruling. Dkt. 1191.
`
`However, the Court is troubled by the dubious behavior and lack of contrition with which
`
`the Defendants have respondedto this matter. For this reason and upon finding good cause to do
`
`so, the Court will grant two of the Plaintiffs’ ore tenus Motions that were madeat the hearing on
`
`May 20, 2022. The five documentsidentified by the Plaintiffs will be deemed admissible for use
`
`as evidenceat trial.! Further, upon the Plaintiffs’ Motion andin lieu of imposing a sanction, the
`
`! The Defendants have filed a stipulation with the Court
`documents are authentic and non-hearsay. Dkt. 1235.
`
`indicating that
`
`the five
`
`2
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 3 of 4 PagelD# 32620
`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 3 of 4 PageID# 32620
`
`Court will strike the most recent supplemental report of Dr. Ryan Sullivan, which addresses
`
`these five documents, pursuant to Federal Rule of Civil Procedure 37(c)(1)(C). See Sharpe v.
`
`United States, 230 F.R.D. 452, 456 (E.D. Va. 2005) (a party who does not disclose information
`
`without substantial justification may not use that evidenceattrial).
`
`2. The Motions to limit prior art and to amendthe identification ofclaims.
`
`The Plaintiffs have filed a Motion to present an additional claim at trial from United
`
`States Patent Number 10,104,911. Discovery has been taken regarding this claim and is
`
`addressed in the expert reports of both Parties. There is no prejudice from allowing the Plaintiffs
`
`to present this claim attrial. For this reason, the Motion is GRANTED.Dkt. 1221.
`
`The Plaintiff has also filed a Motion to limit the number of prior art references and
`
`combinations of prior art the Defendants will use in relation to United States Patent Number
`
`10,104,911. There is no basis to grant this Motion and the Defendants maypresentall the prior
`
`art references and combinationsattrial. This Motion is DENIED. Dkt. 1210.
`
`3. Objection to the exclusion ofunvaccinatedjurors.
`
`Individuals who have not received the coronavirus vaccine will be excluded from the
`
`pool ofpotential jurors for the upcomingtrial. At the prior hearing, the Defendants have objected
`to this decision on the basis that the jury pool will be improperly skewed to include a higher
`number of individuals who are more “health conscious.” The Defendants argue that
`this
`
`composition of the jury pool may result in jurors viewing the Defendants in a negative light
`
`because the Defendants represent a tobacco company. This argumentis not persuasive.
`
`To begin, both sides in this case representthe interests of large and well-known tobacco
`
`companies. Even if there was someinherent prejudice from the composition of the jury pool,it is
`
`incredibly unlikely that one party would face more prejudice than the other party in this case.
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 4 of 4 PagelD# 32621
`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 4 of 4 PageID# 32621
`
`Further, the Court is not aware of any evidence orreliable data that indicates that vaccination
`
`status is an indicator for a particular viewpoint or belief. See United States v. Moses, 2021 U.S.
`
`Dist. LEXIS 195735 at *8 (W.D.N.Y. October 12, 2021) (holding that “the unvaccinated are not
`
`a distinctive group for fair cross-section purposes” in a criminal proceeding); see also United
`
`States v. Elias, 2022 U.S. Dist. LEXIS 7002 at *13 (E.D.N.Y. January 13, 2022) (“Noris there
`
`information sufficient to persuade the court that vaccination status is a proxy for a characteristic
`
`of a distinctive group...”) Like the district court in Moses, this Court finds that it is proper to
`
`exclude unvaccinated jurors in accordance with 28 USC §1866(c)(2). Jd. at *10 (unvaccinated
`
`jurors are likely to “disrupt the proceedings”). The exclusion of unvaccinated jurors will prevent
`
`delay to the trial from a potential outbreak of the virus and decrease the likelihood of individual
`
`infection from the coronavirus. /d. at *11 (“The safety of other jurors, members of the public,
`
`andits staff are of course of the utmost importance to the Court.”)
`
`Forthis reason, the Defendants’ objection is OVERRULED.
`
`It is so ORDERED.
`
`June 3, 2022
`Alexandria, Virginia
`
`NN
`
`/s/
`Leonie M. Brinkema
`United States District Judge
`
`,
`
`Jucyt ' Gre"I
`.
`
`
`
`