Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 1 of 8 PageID# 35317
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`PHILIP MORRIS PRODUCTS S.A.,
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`Plaintiff,
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`v.
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`R.J. REYNOLDS VAPOR COMPANY
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`Defendant.
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`No. 1:20-cv-393-LMB-TCB
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`MEMORANDUM IN SUPPORT OF PHILIP MORRIS’ MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Plaintiff Philip Morris Products S.A. (“Philip Morris”)
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`respectfully moves the Court for leave to file its Brief in Support of Philip Morris’ Motion For a
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`Permanent Injunction or, Alternatively, an Ongoing Royalty (“Brief”) and Exhibits 4-5, 11, 13-20,
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`22-24, 26-27, 30-31, 34-36, 38, 40-44, 47-48, 51, and 56 thereto (“Exhibits”) under seal.
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Philip Morris respectfully seeks leave to file the following documents under seal:
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`• An unredacted version of its Brief in Support of Philip Morris’ Motion For a
`Permanent Injunction or, Alternatively, an Ongoing Royalty (“Brief”); and
`• Exhibit 4 to Philip Morris’ Brief, which includes excerpts from the June 8, 2022
`a.m. trial transcript, which has not yet been publicly released.
`• Exhibit 5 to Philip Morris’ Brief, which is the confidential declaration of Dr. Moira
`Gilchrist, dated August 12, 2022.
`• Exhibit 11 to Philip Morris’ Brief, which includes excerpts from a market report
`that Reynolds produced and designated as confidential business information subject
`to the Protective Order.
`• Exhibit 13 to Philip Morris’ Brief, which includes excerpts from the June 9, 2022
`p.m. trial transcript, which has not yet been publicly released.
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 2 of 8 PageID# 35318
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`• Exhibit 14 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 15 to Philip Morris’ Brief, which includes excerpts from the deposition
`transcript of Nicholas Gilley, dated December 1, 2020, that Reynolds designated as
`confidential business information subject to the Protective Order.
`• Exhibit 16 to Philip Morris’ Brief, which includes excerpts from Reynolds’
`responses to Interrogatory No. 30, dated April 30, 2021, which Reynolds
`designated as confidential business information subject to the Protective Order.
`• Exhibit 17 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 18 to Philip Morris’ Brief, which includes excerpts from a design document
`that Reynolds produced and designated as confidential business information subject
`to the Protective Order.
`• Exhibit 19 to Philip Morris’ Brief, which includes excerpts from the July 21, 2022
`hearing transcript, which has not yet been publicly released.
`• Exhibit 20 to Philip Morris’ Brief, which includes excerpts from Reynolds’
`responses to Interrogatory No. 7, dated September 17, 2020, which Reynolds
`designated as confidential business information subject to the Protective Order.
`• Exhibit 22 to Philip Morris’ Brief, which includes excerpts from the Report of Ryan
`Sullivan, Ph.D., dated March 24, 2021, which Reynolds designated as confidential
`business information subject to the Protective Order.
`• Exhibit 23 to Philip Morris’ Brief, which includes excerpts from the deposition
`transcript of Moira Gilchrist, dated June 18, 2021, which Philip Morris designated
`as confidential subject to the Protective Order.
`• Exhibit 24 to Philip Morris’ Brief, which includes excerpts of a financial
`spreadsheet that Altria Client Services, LLC produced and designated as
`confidential business information subject to the Protective Order.
`• Exhibit 26 to Philip Morris’ Brief, which includes excerpts from the Third
`Amended and Supplemental Opening Expert Report of Paul K. Meyer, dated April
`15, 2022, which Philip Morris designated as confidential business information
`subject to the Protective Order.
`• Exhibit 27 to Philip Morris’ Brief, which includes excepts from a presentation that
`Philip Morris produced and designated as confidential business information subject
`to the Protective Order.
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 3 of 8 PageID# 35319
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`• Exhibit 30 to Philip Morris’ Brief, which includes from the June 9, 2022 a.m. trial
`transcript, which has not yet been publicly released.
`• Exhibit 31 to Philip Morris’ Brief, which includes excerpts from the deposition
`transcript of Kara Calderon, dated November 12, 2020, that Reynolds designated
`as confidential business information subject to the Protective Order.
`• Exhibit 34 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 35 to Philip Morris’ Brief, which includes excerpts from a report that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 36 to Philip Morris’ Brief, which includes excerpts from the June 8, 2022
`p.m. trial transcript, which has not yet been publicly released.
`• Exhibit 38 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 40 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 41 to Philip Morris’ Brief, which includes excerpts from document that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 42 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 43 to Philip Morris’ Brief, which includes excerpts from a presentation that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
`• Exhibit 44 to Philip Morris’ Brief, which is the Declaration of Paul K. Meyer, dated
`August 12, 2022, that was designated by Philip Morris as including information
`produced by Reynolds as confidential under the Protective Order.
`• Exhibit 47 to Philip Morris’ Brief, which includes excerpts from a document that
`Reynolds produced and designated as confidential business information subject to
`the Protective Order.
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`3
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 4 of 8 PageID# 35320
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`• Exhibit 48 to Philip Morris’ Brief, which includes excerpts from the deposition
`transcript of Dr. James Figlar, dated June 3, 2022, that Reynolds designated as
`containing confidential business information subject to the Protective Order.
`• Exhibit 51 to Philip Morris’ Brief, which includes excerpts from the June 14, 2022
`a.m. trial transcript, which has not yet been publicly released.
`• Exhibit 56 to Philip Morris’ Brief, which are royalty reports produced by Philip
`Morris as confidential subject to the Protective Order.
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`II.
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`ARGUMENT
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`Although there is a general presumption that the public has the right to access documents
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`in the files of the courts, this presumption may be overcome “if the public’s right of access is
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`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000)
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`(citation omitted); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To
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`determine whether the interests in sealing the records outweigh the public’s right of access, a court
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`must follow a three-step process: (1) provide public notice of the request to seal and allow
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`interested parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing
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`the documents; and (3) articulate specific reasons and factual findings supporting its decision to
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`seal. Ashcraft, 218 F.3d at 302; Adams v. Object Innovation, Inc., No. 11-cv-00272, 2011 WL
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`7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL 135428
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`(E.D. Va. Jan. 17, 2012). All three requirements are satisfied here.
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`First, the public has received notice of the request to seal and will have a reasonable
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`opportunity to object. In accordance with Local Civil Rule 5 procedures, this sealing motion was
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`publicly docketed, satisfying the first requirement. Reynolds will have an opportunity to respond,
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`and once the “public has had ample opportunity to object” to Philip Morris’ motion and “the Court
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`has received no objections,” the first Ashcraft requirement may be deemed satisfied. See GTSI
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`Corp. v. Wildflower Int’l, Inc., No. 09-cv-00123, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30,
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`2009); U.S. ex rel. Carter v. Halliburton Co., No. 10-cv-00864, 2011 WL 2077799, at *3 (E.D.
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`4
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 5 of 8 PageID# 35321
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`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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`Second, Philip Morris seeks to seal and to redact from the public record only information
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`that the parties must keep confidential pursuant to the stipulated protective order. Philip Morris
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`will file publicly a redacted version of its Brief in addition to a sealed version. Moreover, the
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`exhibits filed under seal contain competitively sensitive information the disclosure of which would
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`cause harm. This selective and narrow protection of confidential material constitutes “the least
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`drastic method of shielding the information at issue.” Adams, 2011 WL 7042224, at *4. The
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`public has no legitimate interest in information that is confidential to Philip Morris, Reynolds, or
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`third parties. See Adams, 2011 WL 7042224, at *4 (“[T]here is no legitimate public interest in
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`disclosing the proprietary and confidential information of [the defendant] ... and disclosure to the
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`public could result in significant damage to the company.”). The information that Philip Morris
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`seeks to seal and redact includes confidential, proprietary, and competitively sensitive business
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`information of Reynolds, Philip Morris, and third parties, that Philip Morris is required to seal
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`under the Protective Order entered this case. Reynolds, Philip Morris, and/or third parties could
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`face harm if such information were released publicly.
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`Third, there is support for filing portions of Philip Morris’ Brief under seal, with a publicly
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`filed version containing strictly limited redactions. As an initial matter, the stipulated protective
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`order requires that this information remain confidential. And the redacted portions of the Brief
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`only pertain to this confidential information. Moreover, the Exhibits filed under seal contain
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`information that Reynolds, Philip Morris, or a third party has designated as competitively sensitive
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`business information. Sealing these materials is therefore proper because the public’s interest in
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`access is outweighed by a party’s interest in “preserving confidentiality” of limited amounts of
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`5
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 6 of 8 PageID# 35322
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`confidential information that is “normally unavailable to the public.” Flexible Benefits Council v.
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`Feltman, No. 08-cv-371, 2008 WL 4924711, at *1; U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`III. CONCLUSION
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`Philip Morris respectfully requests that the Court grant this motion and enter the attached
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`proposed Order.
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`6
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 7 of 8 PageID# 35323
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`Dated: August 12, 2022
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`Respectfully submitted,
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`/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
`jamie.underwood@lw.com (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`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
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`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
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`Counsel for Plaintiff Philip Morris Products
`S.A.
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`7
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`Case 1:20-cv-00393-LMB-TCB Document 1409 Filed 08/12/22 Page 8 of 8 PageID# 35324
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 12th day of August, 2022, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such filing
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`to all counsel of record:
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
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`Counsel for Plaintiff Philip Morris Products
`S.A.
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`8
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