Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 1 of 7 PageID# 38654
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`PHILIP MORRIS PRODUCTS S.A.,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`R.J. REYNOLDS VAPOR COMPANY,
`
`Defendant.
`
`Case No. 1:20-cv-00393-LMB-WEF
`
`
`
`
`DEFENDANT’S RENEWED MOTION TO SEAL
`
`Pursuant to Local Civil Rule 5(C) and the Court’s order at Dkt. 1454 regarding
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`Defendant R.J. Reynolds Vapor Company’s (“RJRV’s”) prior motion to seal at Dkt. 1419, RJRV
`
`hereby moves the Court for leave to file under seal (“Motion”) the following documents:
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`• An unredacted version of RJRV’s Memorandum in Opposition to Plaintiff’s
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`Motion for a Permanent Injunction or, Alternatively, an Ongoing Royalty
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`(“Opposition Brief”) (Dkt. 1421 and resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 1 to RJRV’s Opposition Brief, which is the
`
`confidential declaration of Christy Canary-Garner, dated August 31, 2022 (Dkt.
`
`1421-1 and resubmitted concurrently with this motion).
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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 (Dkt.
`
`1421-2 and resubmitted concurrently with this motion).
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`
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`PHILIP MORRIS PRODUCTS S.A.,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`R.J. REYNOLDS VAPOR COMPANY,
`
`Defendant.
`
`Case No. 1:20-cv-00393-LMB-WEF
`
`
`
`
`DEFENDANT’S RENEWED MOTION TO SEAL
`
`Pursuant to Local Civil Rule 5(C) and the Court’s order at Dkt. 1454 regarding
`
`Defendant R.J. Reynolds Vapor Company’s (“RJRV’s”) prior motion to seal at Dkt. 1419, RJRV
`
`hereby moves the Court for leave to file under seal (“Motion”) the following documents:
`
`• An unredacted version of RJRV’s Memorandum in Opposition to Plaintiff’s
`
`Motion for a Permanent Injunction or, Alternatively, an Ongoing Royalty
`
`(“Opposition Brief”) (Dkt. 1421 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 1 to RJRV’s Opposition Brief, which is the
`
`confidential declaration of Christy Canary-Garner, dated August 31, 2022 (Dkt.
`
`1421-1 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 2 to RJRV’s Opposition Brief, which is the
`
`confidential declaration of Dr. Jeffrey C. Suhling, dated September 1, 2022 (Dkt.
`
`1421-2 and resubmitted concurrently with this motion).
`
`
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`1
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`Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 2 of 7 PageID# 38655
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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 (Dkt. 1421-3 and resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 4 to RJRV’s Opposition Brief, which includes
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`excerpts from the confidential version of the ITC Commission Opinion, issued on
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`September 29, 2021 in Certain Tobacco Heating Articles, Inv. No. 337-TA-1199
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`(U.S.I.T.C.) (the “ITC Investigation” or “ITC”), that Plaintiff Philip Morris
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`Products S.A. (“PMP”) and/or Altria Client Services, LLC/Philip Morris USA Inc.
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`(collectively, “Altria/PM”) designated as containing confidential business
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`information subject to the Protective Order (Dkt. 1421-4 and resubmitted
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`concurrently with this motion)..
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`• An unredacted version of Exhibit 10 to RJRV’s Opposition Brief, which includes
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`excerpts from the deposition transcript of Martin King, dated June 25, 2021, that
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`PMP designated as confidential business information subject to the Protective
`
`Order (Dkt. 1421-10 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 11 to RJRV’s Opposition Brief, which includes
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`excerpts from ITC Hearing Exhibit RX-0188, a distribution agreement that
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`Altria/PM produced and designated as confidential business information subject to
`
`the Protective Order (Dkt. 1421-11 and resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 12 to RJRV’s Opposition Brief, which includes
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`excerpts from ITC Hearing Exhibit RX-0544, a relationship agreement that PMP
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`produced and designated as confidential business information subject to the
`
`Protective Order (Dkt. 1421-12 and resubmitted concurrently with this motion).
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`2
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`Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 3 of 7 PageID# 38656
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`• An unredacted version of Exhibit 13 to RJRV’s Opposition Brief, which includes
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`excerpts from the deposition transcript of Dr. Moira Gilchrist, dated June 18, 2021,
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`that PMP designated as confidential business information subject to the Protective
`
`Order (Dkt. 1421-13 and resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 14 to RJRV’s Opposition Brief, which includes
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`excerpts from Altria/PM’s 8th Supplemental Responses
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`to RJRV's ITC
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`Interrogatories (Nos. 1-19), dated September 25, 2020, that Altria/PM designated
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`as confidential business information subject to the Protective Order (Dkt. 1421-14
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`and resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 19 to RJRV’s Opposition Brief, which includes
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`excerpts from Dr. Jonathan Arnold’s ITC Expert Rebuttal Report, dated October
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`23, 2020 (Dkt. 1421-19 and resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 25 to RJRV’s Opposition Brief, which includes
`
`excerpts from the deposition transcript of Edward Kiernan, dated April 16, 2021,
`
`that PMP designated as confidential business information subject to the Protective
`
`Order (Dkt. 1421-24 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 28 to RJRV’s Opposition Brief, which includes
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`excerpts from ITC Hearing Exhibit CX-0183C, a presentation that Altria/PM
`
`produced and designated as confidential business information subject to the
`
`Protective Order (Dkt. 1421-27 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 29 to RJRV’s Opposition Brief, which includes
`
`excerpts from ITC Hearing Exhibit CX-0190C, a presentation that Altria/PM
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`3
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`Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 4 of 7 PageID# 38657
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`produced and designated as confidential business information subject to the
`
`Protective Order (Dkt. 1421-28 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 30 to RJRV’s Opposition Brief, which includes
`
`excerpts from ITC Hearing Exhibit CX-0614C, a regulatory document that PMP
`
`produced and designated as confidential business information subject to the
`
`Protective Order (Dkt. 1421-29 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 31 to RJRV’s Opposition Brief, which includes
`
`excerpts from the confidential version of RJRV’s March 31, 2021 Opening Post-
`
`Hearing Brief filed in the ITC Investigation, that PMP and/or Altria/PM designated
`
`as containing confidential business information subject to the Protective Order
`
`(Dkt. 1421-30 and resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 39 to RJRV’s Opposition Brief, which is a PMP
`
`intellectual property assignment agreement, that PMP produced and designated as
`
`confidential business information subject to the Protective Order (Dkt. 1421-38 and
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`resubmitted concurrently with this motion).
`
`• An unredacted version of Exhibit 42 to RJRV’s Opposition Brief, which includes
`
`excerpts from PMP’s 8th Supplemental Responses to RJRV's 1st Set of ITC
`
`Interrogatories (Nos. 1-19), dated September 25, 2020, that PMP designated as
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`confidential business information subject to the Protective Order (Dkt. 1421-41 and
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`resubmitted concurrently with this motion).
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`• An unredacted version of Exhibit 44 to RJRV’s Opposition Brief, which is Trial
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`Exhibit PX-125, a RJRV settlement and license agreement, that RJRV produced
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`4
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`Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 5 of 7 PageID# 38658
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`and designated as confidential business information subject to the Protective Order
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`(Dkt. 1421-42 and resubmitted concurrently with this motion).
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`The aforementioned Opposition Brief and Exhibits 1-3, 19, and 44 all contain Reynolds
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`confidential information. The Opposition Brief and Exhibits 4, 10-14, 19, 25, 28-31, 39, and 42
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`all contain information that Plaintiff has designated as confidential and requested to be sealed,
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`and Reynolds expects Plaintiff to provide the necessary support for that material to be sealed.
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`Reynolds takes no position as to the appropriateness of Plaintiff’s designated material for
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`sealing. For the Opposition Brief and Exhibit 19, Reynolds’s information sought to be sealed is
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`annotated with yellow highlighting and PMP’s information it requested be sealed is annotated
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`with green highlighting. In support of this Motion, RJRV submits contemporaneously herewith
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`a non-confidential Memorandum in Support of Motion to File Documents Under Seal, along
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`with a proposed Order.
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`5
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`Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 6 of 7 PageID# 38659
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`Respectfully submitted,
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`
`
`
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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
`
`Dated: April 5, 2023
`
`
`
`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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`Case 1:20-cv-00393-LMB-WEF Document 1458 Filed 04/05/23 Page 7 of 7 PageID# 38660
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on this 5th day of April, 2023, a true and correct copy of the foregoing
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`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
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`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 Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
`
`
`
`
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