Case 1:20-cv-00393-LMB-WEF Document 1439 Filed 11/15/22 Page 1 of 8 PageID# 37469
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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 TO REDACT
`PORTIONS OF THE NOVEMBER 4, 2022, HEARING TRANSCRIPT
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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 to designate as “Confidential” pursuant to the Stipulated Protective
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`Order (Dkt. 103) and to redact certain portions of the transcript of the hearing held before the Court
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`on November 4, 2022 (Dkt. 1436), on the grounds that they reflect confidential business
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`information under the protective order.
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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 from the November 4, 2022, transcript:
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`• Page 22:18 (redact the two words after “retain”);
`• Page 22:20 (redact the two words after “retain”);
`• Page 23:16 (redact the four words before “it is very unique”);
`• Page 23:21 (redact the two words after “retain”);
`• Page 27:15 (redact the fraction before “for the ’265 patent”);
`• Page 29:16-17 (redact the rest of the sentence after “Solo G2”);
`• Page 30:4 (redact the three words before “has changed”);
`• Page 30:5 (redact the entire line);
`• Page 30:7 (redact the end of the sentence following “G2”);
`• Page 30:15 (redact the end of the sentence following “data was that it”);
`• Page 33:4 (redact the two words before “split of the profit”);
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`• Page 33:18 (redact the two words after “was worth”);
`• Page 33:20 (redact the two words after “percentage, took”);
`• Page 34:12 (redact the two words after “only taking”);
`• Page 34:17 (redact the two words after “Just saying”);
`• Page 39:11 (redact the two words after “It’s worth”);
`• Page 41:21 (redact the two words after “that’s their profits”);
`• Page 43:23 (redact the two words before “of the profits”); and
`• Page 44:4 (redact the two words after “operating profit of”).
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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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`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
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`2
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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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`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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`2703(D), 707 F.3d 283, 290 (4th Cir. 2013).
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`3
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`Case 1:20-cv-00393-LMB-WEF Document 1439 Filed 11/15/22 Page 4 of 8 PageID# 37472
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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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`The transcript of the November 4, 2022, hearing held before the Court contains confidential
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`business information of RJRV. The portions of the transcript Reynolds moves the Court to redact
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`includes non-public financial information such as profit margins of individual VUSE products.
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`These materials fall within the Protective Order and RJRV has maintained the confidentiality of
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`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 will have an opportunity to
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`respond, and once the “public has had ample opportunity to object” to RJRV’s sealing motion and
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`“the Court has received no objections,” the first requirement under Ashcraft, 218 F.3d at 302, may
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`be deemed satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09CV123 (JCC), 2009 WL
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`1248114, at *9 (E.D. Va. Apr. 30, 2009); United States. ex rel. Carter v. Halliburton Co., No.
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`1:10CV864 (JCC/TCB), 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties
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`provided public notice of the request to seal that allowed interested parties a reasonable
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`opportunity to object—nearly two weeks.”).
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`Case 1:20-cv-00393-LMB-WEF Document 1439 Filed 11/15/22 Page 5 of 8 PageID# 37473
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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.) This selective and
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`narrow protection of confidential material constitutes the least drastic method of shielding the
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`information at issue. Adams, 2011 WL 7042224, at *4 (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. Id. The information that RJRV seeks to seal
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`includes confidential and competitively sensitive business information of RJRV which could face
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`harm if such information were to be released publicly. No procedure other than filing this
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`information under seal is sufficient to preserve the confidential and sensitive nature of the
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`information.
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`C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
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`There is support for redacting from the public record portions of the November 4, 2022,
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`hearing transcript. The limited portions of the hearing transcript that RJRV moves the Court to
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`redact contain material that falls within the scope of the Stipulated Protective Order. (Dkt. 103.)
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`Placing these materials under seal is proper because the public’s interest in access is outweighed
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`by a party’s interest in “preserving confidentiality” of the limited amount of confidential
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`information that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman,
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`No. 1:08CV00371 (JCC), 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States ex
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`rel. Carter, 2011 WL 2077799, at *3. As RJRV previously explained in its Motion to Seal Trial
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`Exhibits (Dkt. 1243), that was granted by the Court “to the extent that plaintiffs do not object”
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`(Dkt. 1266), materials concerning, in relevant part, financial information (Dkt. 1243 at 10-13; Dkt.
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`Case 1:20-cv-00393-LMB-WEF Document 1439 Filed 11/15/22 Page 6 of 8 PageID# 37474
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`1243-2 at ¶¶ 6-8, 12) contain information that is confidential (Dkt. 1243 at 17-18; Dkt. 1243-2 at
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`¶¶ 5, 6, 10), and disclosure of such information would harm RJRV’s competitive standing and
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`business interests (Dkt. 1243 at 18-23; Dkt. 1243-2 at ¶¶ 6-8, 10-12), such that RJRV’s interests
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`in confidentiality heavily outweigh the public’s interest in disclosure (Dkt. 1243 at 24-26). In
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`granting motions to seal or redact, this Court and others have recognized that the type of
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`information at issue here is confidential that requires sealing from public access.2
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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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`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 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 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 1439 Filed 11/15/22 Page 7 of 8 PageID# 37475
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`Dated: November 15, 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
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`
`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
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`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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`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
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`
`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
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`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
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`Counsel for R.J. Reynolds Vapor Company
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`7
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`Case 1:20-cv-00393-LMB-WEF Document 1439 Filed 11/15/22 Page 8 of 8 PageID# 37476
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 15th day of November, 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
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`Counsel for R.J. Reynolds Vapor Company
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