Case 1:20-cv-00393-LMB-WEF Document 1419-1 Filed 09/02/22 Page 1 of 5 PageID# 35804
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`IN THE 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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`Case No. 1:20-cv-00393-LMB-WEF
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`[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO SEAL
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`This matter is before the Court on the motion filed by Defendant R.J. Reynolds Vapor
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`Company (“RJRV”) hereby moves the Court for leave to file under seal its Memorandum in
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`Opposition to Plaintiff’s Motion for a Permanent Injunction or, Alternatively, an Ongoing Royalty
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`(“Opposition Brief”) and Exhibits 1-4, 9-14, 18-21, 23, 25-26, 28-31, 39, 42, and 44 thereto
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`(“Exhibits”), pursuant to Local Civil Rule 5(C) and 5(H).
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`Before this Court may seal documents, it must consider both substantive and procedural
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`requirements. Substantively, the Court must determine the nature of the information and the
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`public’s right to access. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir.
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`1988). Although “the Supreme Court has not addressed whether the First Amendment’s right of
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`access extends to civil trials or other aspects of civil cases . . . , the Fourth Circuit[ ] ha[s]
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`recognized that the First Amendment right of access extends to civil trials and some civil filings.”
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`Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011). Even so, public access to
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`civil trial records “is not absolute,” and restrictions can be justified by concerns that such records
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`“might . . . become a vehicle for improper purposes,” such as where the records serve “as sources
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`Case 1:20-cv-00393-LMB-WEF Document 1419-1 Filed 09/02/22 Page 2 of 5 PageID# 35805
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`of business information that might harm a litigant’s competitive standing.” Nixon v. Warner
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`Commc’ns, Inc., 435 U.S. 589, 598 (1978). In particular, a corporation’s “strong interest in
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`preserving the confidentiality of its proprietary and trade-secret information . . . may justify partial
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`sealing of court records.” Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014); see also Apple,
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`Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1218, 1228-29 (Fed. Cir. 2013).
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`The common law “presumes a right of access to all judicial records and documents.” Level
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`3 Commc’ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 577 (E.D. Va. 2009).
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`However, the presumption “can be rebutted if countervailing interests heavily outweigh the public
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`interests in access.” Id. (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th
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`Cir. 1988)). For example, “courts have refused to permit their files to serve . . . as sources of
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`business information that might harm a litigant’s competitive standing” and have sealed such
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`information from the public. Id. (quoting Nixon, 435 U.S. at 598). Courts consider whether the
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`movant has borne its “burden of showing some significant interest that outweighs the
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`presumption.” Id. (quoting Rushford, 846 F.2d at 253). The First Amendment’s right of public
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`access is “much stronger than the guarantee provided by the common law.” Id. Accordingly, this
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`Court has held that the First Amendment guarantee of public access “applies where efforts are
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`made to seal documents offered into evidence before a court in the course of a public jury trial.”
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`Id. at 579. In determining whether “a particular document sought to be sealed is subject to the
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`First Amendment’s presumptive right of access, the court must weigh and balance competing
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`interests.” Id. The presumption may be overcome “by an overriding interest based on findings
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`that closure is essential to preserve higher values.” Id. at 580. Courts have recognized that the
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`presumption may be overcome where “confidential commercial information, such as a trade
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`secret,” must be protected. Id. at 582.
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`Case 1:20-cv-00393-LMB-WEF Document 1419-1 Filed 09/02/22 Page 3 of 5 PageID# 35806
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`Procedurally, the Court must: “(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) provide specific reasons and factual findings supporting its decision to seal
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`the documents and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th
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`Cir. 2000) (citing Stone, 855 F.2d at 181). Public notice can be satisfied through the docketing of
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`a party’s motion to seal. Stone, 855 F.2d at 181 (explaining that to satisfy the notice requirement
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`courts must either “notify persons present in the courtroom of the request” or “docket it ‘reasonably
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`in advance of deciding the issue’”); Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-
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`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report & recommendation adopted, 2012
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`WL 135428 (E.D. Va. Jan. 17, 2012).
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`Upon consideration of RJRV’s motion to seal and its memorandum in support thereof, the
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`Court hereby FINDS 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. RJRV’s sealing motion was publicly docketed in accordance with Local
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`Civil Rule 5. Philip Morris Products S.A. (“PMP”) and Altria Client Services, LLC/Philip Morris
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`USA Inc. (collectively, “Altria/PM”) have had an opportunity to respond. The “public has had
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`ample opportunity to object” to RJRV’s motion and, because “the Court has received no
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`objections,” the first requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp.
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`v. Wildflower Int’l, Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009);
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`U.S. ex rel. Carter v. Halliburton Co., No. 1:10-cv-864-JCC/TCB, 2011 WL 2077799, at *3 (E.D.
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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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`Case 1:20-cv-00393-LMB-WEF Document 1419-1 Filed 09/02/22 Page 4 of 5 PageID# 35807
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`2.
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`RJRV seeks to seal and redact from the public record only information designated
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`by the parties as confidential. RJRV has filed a publicly redacted version of its Opposition Brief
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`and Exhibits, in addition to a sealed version, and has redacted only those limited portions it seeks
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`to seal. This selective and narrow protection of confidential material constitutes the least drastic
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`method of shielding the information at issue. Adams v. Object Innovation, Inc., No. 3:11-cv-272-
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`REP-DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011) (The “proposal to redact only the
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`proprietary and confidential information, rather than seal the entirety of his declaration, constitutes
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`the least drastic method of shielding the information at issue.”). The public has no legitimate
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`interest in information that is confidential to RJRV, PMP, Altria/PM, or third parties. The
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`information that Reynolds seeks to seal includes confidential, proprietary, and competitively
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`sensitive business information of RJRV, PMP, Altria/PM, and third parties, any of which could
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`face harm if such information were to be released publicly. Specifically, the sensitive information
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`that Reynolds moves for leave to file under seal and to redact from the public versions relates to
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`and discusses confidential information of RJRV, PMP, Altria/PM, and third parties, such as
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`confidential and proprietary information made available to FDA as part of the regulatory process;
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`licensing agreements with third parties; internal business documents; and non-public financial
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`information, including forecasts, costs analyses, internal plans regarding distribution and
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`marketing, and financial information for individual VUSE product lines. These materials fall
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`within the Protective Order and RJRV has maintained the confidentiality of these documents.
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`3.
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`There is support for filing RJRV’s Opposition Brief and Exhibits under seal.
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`RJRV’s Opposition Brief and Exhibits contain material that falls within the scope of the Stipulated
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`Protective Order. Placing these materials under seal is proper because the public’s interest in
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`access is outweighed by a party’s interest in “preserving confidentiality” of the limited amount of
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`Case 1:20-cv-00393-LMB-WEF Document 1419-1 Filed 09/02/22 Page 5 of 5 PageID# 35808
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`confidential information that is “normally unavailable to the public.” Flexible Benefits Council v.
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`Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel.
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`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 RJRV is granted leave to file a
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`REDACTED version of RJRV’s Opposition Brief and Exhibits and to file UNDER SEAL un-
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`redacted versions of RJRV’s Opposition Brief and Exhibits.
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`And FURTHER ORDERED that the un-redacted versions of RJRV’s Opposition Brief
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`and 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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`__________________________________________
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`LEONIE BRINKEMA
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`UNITED STATES DISTRICT JUDGE
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