Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 1 of 4 PagelD# 38616
`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 1 of 4 PageID# 38616
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`PHILIP MORRIS PRODUCTSS.A.,
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`Plaintiff,
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`Vv.
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`RJ. REYNOLDS VAPOR COMPANY,
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`Defendant.
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`1:20-cv-393 (LMB/WEF)
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`ORDER
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`Before the Court are motionsto seal filed by plaintiff Philip Morris Products S.A.
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`(‘Philip Morris”) and defendant R.J. Reynolds Vapor Company (“Reynolds”), in which they
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`seek to file under seal portions of their briefing and exhibits concerning Philip Morris’s Motion
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`for a PermanentInjunction or, Alternatively, an Ongoing Royalty. See [Dkt. Nos. 1408, 1419].
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`There are several problems with the pending motions. First, Philip Morris has filed entire
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`exhibits attached to its opening brief and reply brief under seal and simply removed them from
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`the public versionsofits filings instead offiling redacted versions of the exhibits in the public
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`docket. See [Dkt. Nos. 1406, 1425]. Local Civil Rule 5 provides that a party seeking tofile
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`material under seal “must make a goodfaith effort to redact or seal only as much as necessary to
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`protect legitimate interests,” and “[b]lanket sealing of entire briefs, documents, or other papers is
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`rarely appropriate.” The Rule further provides that “[w]here sealing is sought for less than an
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`entire documentorfiling, an unsealed, redacted version of the documentorfiling shall be filed in
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`the public record.” Philip Morris has not complied with these requirements, and its motion to
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`seal fails to explain why entire exhibits must be sealed when there is material in those exhibits
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`

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`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 2 of 4 PagelD# 38617
`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 2 of 4 PageID# 38617
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`that was publicly disclosed during the trial and motions hearings and does not otherwise appear
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`to reveal confidential, proprietary, or competitively sensitive business information.
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`A party must provide sufficient justification for sealing to enable the Court to ensure that
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`documents are sealed only when “the public’s right of access is outweighed by competing
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`interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000). As Local Civil Rule 5
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`explains, “[a]greementof the parties that a documentor other material should be filed underseal
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`or the designation of a documentor other material as confidential during discovery is not, by
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`itself, sufficient justification for allowing a documentor other material to be filed underseal.” In
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`addition, although Philip Morris has filed redacted versions of its opening brief and reply brief in
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`the public docket, it has redacted material that does not warrant sealing. For instance, Philip
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`Morris has redacted specific percentages of the ongoingroyalty rates it requests that the Court
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`award, but the Federal Circuit does nottreat as confidential the ongoing royalty awarded to a
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`patent holder. See, e.g., XY, LLC v. Trans Ova Genetics, L.C., 890 F.3d 1282, 1296-98 (Fed.
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`Cir. 2018); Amado v. Microsoft Corp., 517 F.3d 1353, 1361-62 (Fed. Cir. 2008).
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`Therefore, Philip Morris’ Motion to Seal [Dkt. No. 1408] will be denied without
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`prejudice. If Philip Morris still seeks to keep any portionsof its opening or reply briefs or
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`exhibits underseal, it must file a renewed motion to seal that complies with Local Civil Rule 5.
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`Philip Morris’ sealed opening brief, reply brief, and exhibits [Dkt. Nos. 1411, 1429] will remain
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`underseal conditional on thefiling of an appropriate renewed motionto seal.
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`Although Reynolds hasfiled redacted versionsof its opposition brief and accompanying
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`exhibits in the public docket, someofits exhibits have also been filed entirely under seal. See
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`[Dkt. No. 1423]. To ensure that only non-public and confidential, proprietary, or competitively
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`sensitive business information is sealed and thatits redactions are not excessive, Reynolds’
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`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 3 of 4 PagelD# 38618
`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 3 of 4 PageID# 38618
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`Motion to Seal [Dkt. No. 1419] will also be denied without prejudice to permit Reynoldsto file
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`appropriately redacted versions of its opposition brief and exhibits in accordance with the
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`aforementioned instructions. Reynolds’ opposition brief and exhibits [Dkt. No. 1421] will
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`remain underseal conditional on the filing of an appropriate renewed motionto seal.
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`Finally, both parties have filed under seal excerpts oftrial and hearing transcripts as
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`attachments to their memorandaon the groundsthat the transcripts had not been publicly
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`released. Philip Morris filed under seal excerpts of two transcripts for hearings held on March
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`18, 2022 and July 21, 2022, but because those transcripts have been publicly released, see [Dkt.
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`Nos. 1188, 1401], there is no longer any basis for sealing the excerpts.
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`Asfor the trial transcript, through inadvertence the transcript was not docketed until
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`today. The trial transcript has been docketed on CM/ECF,and in accordance with the Eastern
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`District of Virginia Electronic Case Filing Policies and Procedure Manual,the parties will have
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`thirty days from today to file a Redaction Request with the court reporter to redact personal
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`identifiers.! Should either party seek to seal any otherportionofthetrial transcript, the parties
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`are advised that this Court looks disfavorably on motions to seal transcripts where, as here, the
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`entire proceeding was conducted in open court. As soon as requests for redactions,if any, are
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`resolved, the Clerk will make the transcript available to the public electronically on CM/ECF.
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`Accordingly, for the foregoing reasons, Philip Morris’ Motion to Seal [Dkt. No. 1408]
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`and Reynolds’ Motion to Seal [Dkt. No. 1419] are DENIED WITHOUT PREJUDICE; however,
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`the sealed filings [Dkt, Nos. 1411, 1421, 1429] are to remain underseal until any renewed
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`motionsto seal are refiled, andit is hereby
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`! See Electronic Filing and Service of Documents — Electronic Transcripts, Eastern District of
`Virginia Electronic Case Filing Policies and Procedure Manual,
`https://www.vaed.uscourts.gov/sites/vaed/files/ECF-Manual%2012-17-2021.pdf.
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`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 4 of 4 PagelD# 38619
`Case 1:20-cv-00393-LMB-WEF Document 1454 Filed 03/22/23 Page 4 of 4 PageID# 38619
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`ORDEREDthat any renewed motionsto seal the opening brief, opposition, and reply
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`brief and attached exhibits concerning Philip Morris’s Motion for a PermanentInjunctionor,
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`Alternatively, an Ongoing Royalty be filed within fourteen (14) days of the date of this Order;
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`andit is further
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`ORDEREDthat any requests to redactthetrial transcript be filed within thirty (30) days.
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`The Clerk is directed to forward copies of this Order to counsel of record.
`Entered this AdGay ofMarch, 2023.
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`Alexandria, Virginia
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`/s/
`Leonie M. Brinke:na
`United Siates District Judge
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