Case 1:20-cv-00393-LMB-WEF Document 1422 Filed 09/02/22 Page 1 of 12 PageID# 36548
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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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`MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION
`FOR LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Defendant R.J. Reynolds Vapor Company (“RJRV”)
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`respectfully moves the Court for leave to file under seal its Memorandum in Opposition to
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`Plaintiff’s Motion for a Permanent Injunction or, Alternatively, an Ongoing Royalty (“Opposition
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`Brief”) and Exhibits 1-4, 9-14, 18-21, 23, 25-26, 28-31, 39, 42, and 44 thereto (collectively,
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`“Exhibits”).
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`RJRV respectfully seeks leave to file the following documents under seal:
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`• An unredacted version of its Opposition Brief.
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`• An unredacted version of Exhibit 1 to RJRV’s Opposition Brief, which is the
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`confidential declaration of Christy Canary-Garner, dated August 31, 2022.
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`• An unredacted version of Exhibit 2 to RJRV’s Opposition Brief, which is the
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`confidential declaration of Dr. Jeffrey C. Suhling, dated September 1, 2022.
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`• An unredacted version of Exhibit 3 to RJRV’s Opposition Brief, which is the
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`confidential declaration of Ryan Sullivan, Ph.D and attachments thereto, dated
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`September 1, 2022.
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`• Exhibit 4 to RJRV’s Opposition Brief, which includes excerpts from the
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`confidential version of the ITC Commission Opinion, issued on September 29,
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`2021 in Certain Tobacco Heating Articles, Inv. No. 337-TA-1199 (U.S.I.T.C.) (the
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`“ITC Investigation” or “ITC”), that Plaintiff Philip Morris Products S.A. (“PMP”)
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`and/or Altria Client Services, LLC/Philip Morris USA Inc. (collectively,
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`“Altria/PM”) designated as containing confidential business information subject to
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`the Protective Order.
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`• Exhibit 9 to RJRV’s Opposition Brief, which includes excerpts from PMP’s 3rd
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`Supplemental Responses to RJRV's 2nd Set of E.D. Va. Interrogatories (No. 14),
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`dated April 6, 2021, that PMP designated as confidential business information
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`subject to the Protective Order.
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`• Exhibit 10 to RJRV’s Opposition Brief, which includes excerpts from the
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`deposition transcript of Martin King, dated June 25, 2021, that PMP designated as
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`confidential business information subject to the Protective Order.
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`• Exhibit 11 to RJRV’s Opposition Brief, which includes excerpts from ITC Hearing
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`Exhibit RX-0188, a distribution agreement that Altria/PM produced and designated
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`as confidential business information subject to the Protective Order.
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`• Exhibit 12 to RJRV’s Opposition Brief, which includes excerpts from ITC Hearing
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`Exhibit RX-0544, a relationship agreement that PMP produced and designated as
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`confidential business information subject to the Protective Order.
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`• Exhibit 13 to RJRV’s Opposition Brief, which includes excerpts from the
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`deposition transcript of Dr. Moira Gilchrist, dated June 18, 2021, that PMP
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`designated as confidential business information subject to the Protective Order.
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`• Exhibit 14 to RJRV’s Opposition Brief, which includes excerpts from Altria/PM’s
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`8th Supplemental Responses to RJRV's ITC Interrogatories (Nos. 1-19), dated
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`September 25, 2020, that Altria/PM designated as confidential business
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`information subject to the Protective Order.
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`• Exhibit 18 to RJRV’s Opposition Brief, which includes excerpts from Dr. Stacey
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`M. Benson’s ITC Expert Rebuttal Report, dated October 23, 2020, that PMP and/or
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`Altria/PM designated as confidential business information subject to the Protective
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`Order.
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`• Exhibit 19 to RJRV’s Opposition Brief, which includes excerpts from Dr. Jonathan
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`Arnold’s ITC Expert Rebuttal Report, dated October 23, 2020, that PMP and/or
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`Altria/PM designated as confidential business information subject to the Protective
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`Order.
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`• Exhibit 20 to RJRV’s Opposition Brief, which includes excerpts from Stacy
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`Ehrlich’s ITC Expert Rebuttal Report, dated Oct. 23, 2020, that PMP and/or
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`Altria/PM designated as confidential business information subject to the Protective
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`Order.
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`• Exhibit 21 to RJRV’s Opposition Brief, which includes excerpts from Brad Rodu’s
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`ITC Expert Report, dated Oct. 5, 2020, that PMP and/or Altria/PM designated as
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`confidential business information subject to the Protective Order.
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`• Exhibit 23 to RJRV’s Opposition Brief, which includes excerpts from PMP’s 3rd
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`Supplemental Responses to RJRV's 2nd Set of E.D. Va. Interrogatories (No. 14),
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`dated April 6, 2021, that PMP designated as confidential business information
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`subject to the Protective Order.
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`• Exhibit 25 to RJRV’s Opposition Brief, which includes excerpts from the
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`deposition transcript of Edward Kiernan, dated April 16, 2021, that PMP designated
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`as confidential business information subject to the Protective Order.
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`• Exhibit 26 to RJRV’s Opposition Brief, which includes excerpts from the June 8-
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`15, 2022 trial transcript in the above-captioned action, which has not yet been
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`publicly released.
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`• Exhibit 28 to RJRV’s Opposition Brief, which includes excerpts from ITC Hearing
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`Exhibit CX-0183C, a presentation that Altria/PM produced and designated as
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`confidential business information subject to the Protective Order.
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`• Exhibit 29 to RJRV’s Opposition Brief, which includes excerpts from ITC Hearing
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`Exhibit CX-0190C, a presentation that Altria/PM produced and designated as
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`confidential business information subject to the Protective Order.
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`• Exhibit 30 to RJRV’s Opposition Brief, which includes excerpts from ITC Hearing
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`Exhibit CX-0614C, a regulatory document that PMP produced and designated as
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`confidential business information subject to the Protective Order.
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`• Exhibit 31 to RJRV’s Opposition Brief, which includes excerpts from the
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`confidential version of RJRV’s March 31, 2021 Opening Post-Hearing Brief filed
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`in the ITC Investigation, that PMP and/or Altria/PM designated as containing
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`confidential business information subject to the Protective Order.
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`• Exhibit 39 to RJRV’s Opposition Brief, which is a PMP intellectual property
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`assignment agreement, that PMP produced and designated as confidential business
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`information subject to the Protective Order.
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`• Exhibit 42 to RJRV’s Opposition Brief, which includes excerpts from PMP’s 8th
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`Supplemental Responses to RJRV's 1st Set of ITC Interrogatories (Nos. 1-19),
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`dated September 25, 2020, that PMP designated as confidential business
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`information subject to the Protective Order.
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`• Exhibit 44 to RJRV’s Opposition Brief, which is Trial Exhibit PX-125, a RJRV
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`settlement and license agreement, that RJRV produced and designated as
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`confidential business information subject to the Protective Order.
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`II.
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`LEGAL STANDARD
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`The law of the regional circuit applies to non-substantive issues of patent law, including
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`the question whether to seal district court records. See Uniloc 2017 LLC v. Apple, Inc., 964 F.3d
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`1351, 1357 (Fed. Cir. 2020). A motion to seal implicates both substantive and procedural
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`requirements. Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004).
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`Substantively, the Court must determine the nature of the information and the public’s right
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`to access. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir. 1988). “The right
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`of public access to documents or materials filed in a district court derives from two independent
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`sources: the common law and the First Amendment.” Va. Dep’t of State Police, 386 F.3d at 575.
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`“While the common law presumption in favor of access attaches to all ‘judicial records and
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`documents,’ the First Amendment guarantee of access has been extended only to particular judicial
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`records and documents.” Stone, 855 F.2d at 180 (internal citation omitted). Moreover, the
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`common law right to inspect records and documents “is not absolute.” Nixon v. Warner
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`Communications, Inc., 435 U.S. 589, 598 (1978). Accordingly, some documents “fall within the
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`common law presumption of access, while others are subject to the greater right of access provided
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`by the First Amendment. Still others may not qualify as ‘judicial records’ at all.” U.S. v.
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`Moussaoui, 65 F. App’x 881, 889 (4th Cir. 2003) (internal citation omitted).1
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`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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`of business information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at
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`598.
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`As set forth in the Fourth Circuit’s decision in Ashcraft v. Conoco, Inc., a court has the
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`authority to seal court documents “if the public’s right of access is outweighed by competing
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`interests.” 218 F.3d 288, 302 (4th Cir. 2000). Before granting a motion to seal, a court must
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`consider the following: “(1) provide public notice of the request to seal and allow interested parties
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`a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents,
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`and (3) provide specific reasons and factual findings supporting its decision to seal the documents
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`and for rejecting the alternatives.” Id.; Adams v. Object Innovation, Inc., No. 3:11CV00272-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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`1 “Judicial records” are “documents filed with the court [that] play a role in the adjudicative
`process, or adjudicate substantive rights.” In re U.S. for an Order Pursuant to 18 U.S.C. Section
`2703(D), 707 F.3d 283, 290 (4th Cir. 2013).
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`Procedurally, Local Civil Rule 5(C) requires that, when a party moves to file material under
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`seal that another party has designated as confidential, “the party designating the material as
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`confidential must file a response to the motion complying with requirements (2), (3), and (4) above
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`along with a proposed order” that “shall recite the findings required by governing case law to
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`support the proposed sealing.” Loc. R. Civ. P. 5(C). These requirements are: “(2) A statement
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`why sealing is necessary, and why another procedure will not suffice, as well as appropriate
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`evidentiary support for the sealing request; (3) References to the governing case law, an analysis
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`of the appropriate standard to be applied for that specific filing, and a description of how that
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`standard has been satisfied; [and] (4) Unless permanent sealing is sought, a statement as to the
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`period of time the party seeks to have the matter maintained under seal and how the matter is to be
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`handled upon unsealing.” Id.
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`III.
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`ARGUMENT
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`RJRV’s Opposition Brief and Exhibits identified above contain confidential business
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`information of RJRV, PMP, Altria/PM, and third parties, including confidential and proprietary
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`information made available to FDA as part of the regulatory process; licensing agreements with
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`third parties; internal business documents; and non-public financial information, including
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`forecasts, costs analyses, internal plans regarding distribution and marketing, and financial
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`information for individual VUSE product lines. These materials fall within the Protective Order
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`and RJRV has maintained the confidentiality of these documents.
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`A. THE PUBLIC HAS AMPLE NOTICE.
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`The public has received notice of the request to seal and will have a reasonable opportunity
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`to object. RJRV’s sealing motion is being publicly docketed in accordance with Local Civil Rule
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`5, and RJRV now files this memorandum in support of sealing. PMP and Altria/PM will have an
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`opportunity to respond, and once the “public has had ample opportunity to object” to RJRV’s
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`sealing motion and “the Court has received no objections,” the first requirement under Ashcraft,
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`218 F.3d at 302, may be deemed satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09CV123
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`(JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); United States. ex rel. Carter v.
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`Halliburton Co., No. 1:10CV864 (JCC/TCB), 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011)
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`(“[T]he parties provided public notice of the request to seal that allowed interested parties a
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`reasonable opportunity to object—nearly two weeks.”).
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`B. RJRV SEEKS THE LEAST DRASTIC MEASURES.
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`RJRV seeks to seal and redact from the public record only information that the parties must
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`keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) RJRV has filed a
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`publicly redacted version of its Opposition Brief and Exhibits, in addition to a sealed version, and
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`has redacted only those limited portions it seeks to seal.
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`This selective and narrow protection of confidential material constitutes the least drastic
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`method of shielding the information at issue. Adams, 2011 WL 7042224, at *4 (The “proposal to
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`redact only the proprietary and confidential information, rather than seal the entirety of his
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`declaration, constitutes the least drastic method of shielding the information at issue.”). The public
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`has no legitimate interest in information that is confidential to RJRV, PMP, Altria/PM, or third
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`parties. Id. The information that RJRV seeks to seal includes confidential, proprietary, and
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`competitively sensitive business information of RJRV, PMP, Altria/PM, and third parties, any of
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`which could face harm if such information were to be released publicly. No procedure other than
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`filing this information under seal is sufficient to preserve the confidential and sensitive nature of
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`the information.
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`C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
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`There is support for filing RJRV’s Opposition Brief and Exhibits under seal with a publicly
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`filed version containing strictly limited redactions. The redacted material in RJRV’s Opposition
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`Brief and Exhibits contain material that falls within the scope of the Stipulated Protective Order.
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`(Dkt. 103.) Placing these materials under seal is proper because the public’s interest in access is
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`outweighed by a party’s interest in “preserving confidentiality” of the limited amount of
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`confidential information that is “normally unavailable to the public.” Flexible Benefits Council v.
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`Feltman, No. 1:08CV00371 (JCC), 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United
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`States ex rel. Carter, 2011 WL 2077799, at *3. As RJRV previously explained in its Motion to
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`Seal Trial Exhibits (Dkt. 1243), that was granted by the Court “to the extent that plaintiffs do not
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`object” (Dkt. 1266), materials concerning (1) Vuse PMTAs (Dkt. 1243 at 4-8; Dkt. 1243-2 at ¶¶
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`6-8); (2) non-party settlement agreements and license agreements (Dkt. 1243 at 10-13; Dkt. 1243-
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`2 at ¶¶ 10-11); and (3) financial forecasts, cost analyses, future business plans and related
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`testimony (Dkt. 1243 at 10-13; Dkt. 1243-2 at ¶¶ 6-8, 12) contain information that is confidential
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`(Dkt. 1243 at 17-18; Dkt. 1243-2 at ¶¶ 5, 6, 10), and disclosure of such information would harm
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`RJRV’s competitive standing and business interests (Dkt. 1243 at 18-23; Dkt. 1243-2 at ¶¶ 6-8,
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`10-12), such that RJRV’s interests in confidentiality heavily outweigh the public’s interest in
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`disclosure (Dkt. 1243 at 24-26). In granting motions to seal exhibits to dispositive and non-
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`dispositive briefing, this Court and others have recognized that the type of information at issue
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`here is confidential that requires sealing from public access.2
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`2 See, e.g., LifeNet Health v. LifeCell Corp., No. 2:13cv486, 2015 WL 12517430, at *4 (E.D. Va.
`Feb. 12, 2015 (granting motion to redact trial transcripts to seal future product plans, licensing
`agreements with third-parties, and financial information as “trade secret[s]” “significant enough
`to outweigh the First Amendment right of access in this case”); In re Genworth Fin. Sec. Litig.,
`No. 3:14-cv-682-JAG, 2015 WL 12830373, at *2 (E.D. Va. Dec. 10, 2015) (granting motions to
`seal exhibits to a declaration and portions of a motion to compel containing commercially sensitive
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`IV.
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`CONCLUSION
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`For the foregoing reasons, RJRV respectfully requests that the Court grant this motion and
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`enter the attached proposed Order.
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`information such as business strategy, product development strategy, and future business
`planning); ATI Indus. Automation, Inc. v. Applied Robotics, Inc., No. 1:09CV471, 2014 WL
`2607364, at *5 (M.D.N.C. June 11, 2014) (granting motion to seal information concerning
`customers, customer purchase history, pricing, and costs); SMD Software, Inc. v. EMove Inc., No.
`5:08-CV-403-FL, 2013 WL 1091054, at *6 (E.D.N.C. Mar. 15, 2013) (granting motion to seal
`financial, market share, pricing, and marketing information).
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`Case 1:20-cv-00393-LMB-WEF Document 1422 Filed 09/02/22 Page 11 of 12 PageID# 36558
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`Dated: September 2, 2022
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`
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`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`110 North Wacker
`Suite 4800
`Chicago, IL 60606
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
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`
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`Respectfully submitted,
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`
` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
`
`Charles B. Molster, III Va. Bar No. 23613
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 2nd day of September, 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/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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