Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 1 of 8 PageID# 40715
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`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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`No. 1:20-cv-393-LMB-TCB
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`MEMORANDUM IN SUPPORT OF PHILIP MORRIS’ RENEWED MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), and the Court’s Order dated March 22, 2023 (Dkt.
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`1454), Plaintiff Philip Morris Products S.A. (“Philip Morris”) respectfully moves the Court for
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`leave to file under seal its Brief in Support of Philip Morris’ Motion For a Permanent Injunction
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`or, Alternatively, an Ongoing Royalty (“Opening Brief”), Reply in Support of Philip Morris’
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`Motion For a Permanent Injunction or, Alternatively, an Ongoing Royalty (“Reply Brief”)
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`(together, “Briefs”), and Exhibits 5, 18, 23-24, 27, 38, 41, 43-44, 47-48, 56, 65-66, 76, and 78
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`thereto (“Exhibits”).1
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`In addition, pursuant to Local Civil Rule 5(C), and the Court’s Order dated March 30, 2023
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`(Dkt. 1456), Philip Morris respectfully requests that the Court maintain under seal its
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`Memorandum Opinion, entered March 30, 2023 (Dkt. 1455) (“Memorandum Opinion”).
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`1 Philip Morris is no longer seeking to file under seal Exhibits 4, 11, 13-17, 19-20, 22, 26, 30-31,
`34-36, 40, 42, and 51 to Philip Morris’ Opening Brief, and Exhibits 57-58, 70, 74-75, and 77 to
`Philip Morris’ Reply Brief, in view of the Court’s Order.
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`Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 2 of 8 PageID# 40716
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Philip Morris respectfully seeks leave to file the following documents under seal:
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`• An unredacted version of the Memorandum Opinion (Dkt. 1455);
`• An unredacted version of Philip Morris’ Opening Brief;
`• Exhibit 5 to Philip Morris’ Opening Brief, which is the confidential declaration of
`Dr. Moira Gilchrist, dated August 12, 2022;
`• Exhibit 18 to Philip Morris’ Opening Brief, which includes excerpts from a design
`document that Reynolds produced and designated as confidential business
`information subject to the Protective Order;
`• Exhibit 23 to Philip Morris’ Opening Brief, which includes excerpts from the
`deposition transcript of Moira Gilchrist, dated June 18, 2021, which Philip Morris
`designated as confidential subject to the Protective Order;
`• Exhibit 24 to Philip Morris’ Opening Brief, which includes excerpts of a financial
`spreadsheet that Altria Client Services, LLC produced and designated as
`confidential business information subject to the Protective Order;
`• Exhibit 27 to Philip Morris’ Opening Brief, which includes excepts from a
`presentation that Philip Morris produced and designated as confidential business
`information subject to the Protective Order;
`• Exhibit 38 to Philip Morris’ Opening Brief, which includes excerpts from a
`presentation that Reynolds produced and designated as confidential business
`information subject to the Protective Order;
`• Exhibit 41 to Philip Morris’ Opening Brief, which includes excerpts from a
`document that Reynolds produced and designated as confidential business
`information subject to the Protective Order;
`• Exhibit 43 to Philip Morris’ Opening Brief, which includes excerpts from a
`presentation that Reynolds produced and designated as confidential business
`information subject to the Protective Order;
`• Exhibit 44 to Philip Morris’ Opening Brief, which is the Declaration of Paul K.
`Meyer, dated August 12, 2022, that was designated by Philip Morris as including
`information produced by Reynolds as confidential under the Protective Order;
`• Exhibit 47 to Philip Morris’ Opening Brief, which includes excerpts from a
`document that Reynolds produced and designated as confidential business
`information subject to the Protective Order;
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`2
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`Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 3 of 8 PageID# 40717
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`• Exhibit 48 to Philip Morris’ Opening Brief, which includes excerpts from the
`deposition transcript of Dr. James Figlar, dated June 3, 2022, that Reynolds
`designated as containing confidential business information subject to the Protective
`Order;
`• Exhibit 56 to Philip Morris’ Opening Brief, which are royalty reports produced by
`Philip Morris as confidential business information subject to the Protective Order;
`• An unredacted version of Philip Morris’ Reply Brief;
`• Exhibit 65 to Philip Morris’ Reply Brief, which includes excerpts from the
`deposition transcript of Moira Gilchrist, dated June 18, 2021, which Philip Morris
`designated as confidential subject to the Protective Order;
`• Exhibit 66 to Philip Morris’ Reply Brief, which includes excerpts from Reynolds’
`Second Supplemental Objections and Responses to Interrogatories, dated April 30,
`2021, that Reynolds designated as containing confidential business information
`subject to the Protective Order;
`• Exhibit 76 to Philip Morris’ Reply Brief, which is the Reply Declaration of Paul K.
`Meyer, dated September 9, 2022, which was designated by Philip Morris as
`including information produced by Reynolds as confidential under the Protective
`Order; and
`• Exhibit 78 to Philip Morris’ Reply Brief, which includes excerpts from the Expert
`Report of Ryan Sullivan, Ph.D., that Reynolds designated as containing
`confidential business information subject to the Protective Order.
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`The Memorandum Opinion, Briefs, and Exhibits 5, 23, 24, 27, 44, 56, 65, and 66 contain
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`PMP’s confidential business information. The Memorandum Opinion, Briefs, and Exhibits 18,
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`38, 41, 43, 47-48, 76, and 78 contain information designated as confidential business information
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`by R.J. Reynolds Vapor Company (“Reynolds”). Philip Morris takes no position as to the
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`appropriateness of Reynolds’ designated material for sealing. For the Briefs and Exhibit 44, Philip
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`Morris’ information sought to be sealed is identified in green, and Reynolds’ information sought
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`to be sealed is identified in yellow. Philip Morris will separately provide the Court with its
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`proposed redactions to the Memorandum Opinion.
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`II.
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`ARGUMENT
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`Although there is a general presumption that the public has the right to access documents
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`3
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`Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 4 of 8 PageID# 40718
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`in the files of the courts, this presumption may be overcome “if the public’s right of access is
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`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000)
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`(citation omitted); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To
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`determine whether the interests in sealing the records outweigh the public’s right of access, a court
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`must follow a three-step process: (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) articulate specific reasons and factual findings supporting its decision to
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`seal. Ashcraft, 218 F.3d at 302; Adams v. Object Innovation, Inc., No. 11-cv-00272, 2011 WL
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`7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL 135428
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`(E.D. Va. Jan. 17, 2012). All three requirements are satisfied here.
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`First, the public has received notice of the request to seal and will have a reasonable
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`opportunity to object. In accordance with Local Civil Rule 5 procedures, this sealing motion was
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`publicly docketed, satisfying the first requirement. Reynolds will have an opportunity to respond,
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`and once the “public has had ample opportunity to object” to Philip Morris’ motion and “the Court
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`has received no objections,” the first Ashcraft requirement may be deemed satisfied. See GTSI
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`Corp. v. Wildflower Int’l, Inc., No. 09-cv-00123, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30,
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`2009); U.S. ex rel. Carter v. Halliburton Co., No. 10-cv-00864, 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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`Second, Philip Morris seeks to seal and to redact from the public record only information
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`designated by the parties and third-parties (e.g., Altria Client Services, LLC) as confidential.
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`Philip Morris will file publicly a redacted version of its Briefs and Exhibits, in addition to sealed
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`4
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`Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 5 of 8 PageID# 40719
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`versions, and will redact only those limited portions it seeks to seal.2 Further, Philip Morris will
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`provide the Court with its proposed redactions to the Memorandum Opinion, proposing to redact
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`only those limited portions it seeks to seal. This selective and narrow protection of confidential
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`material constitutes “the least drastic method of shielding the information at issue.” Adams, 2011
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`WL 7042224, at *4 (finding that plaintiffs’ “proposal to redact only the proprietary and
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`confidential information, rather than seal the entirety of his declaration, constitutes the least drastic
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`method of shielding the information at issue”). The public has no legitimate interest in information
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`that is confidential to Philip Morris, Reynolds, or third parties. See Adams, 2011 WL 7042224, at
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`*4 (“[T]here is no legitimate public interest in disclosing the proprietary and confidential
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`information of [the defendant] ... and disclosure to the public could result in significant damage to
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`the company.”). The information that Philip Morris seeks to seal and redact includes confidential,
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`proprietary, and competitively sensitive business information which could cause harm if such
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`information were to be released publicly. For example, certain of the materials sought to be sealed
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`includes highly confidential terms of agreements that Philip Morris has entered into that, if
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`disclosed, would allow third parties to increase their negotiating position against Philip Morris in
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`the future. Similarly, certain of the materials sought to be sealed include highly confidential sales
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`data that, if disclosed, would allow competitors to gain an unfair advantage over Philip Morris in
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`the market. Further, other materials sought to be sealed describe Philip Morris’ highly confidential
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`future plans in the market which, if disclosed, could harm Philip Morris by, for example, allowing
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`competitors to position themselves to more effectively compete against Philip Morris.
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`2 Reynolds has requested that Exhibit 47 to Philip Morris’ Opening Brief be filed under seal in its
`entirety. Philip Morris takes no position on whether Reynolds’ request is proper.
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`Third, there is support for filing portions of the Briefs, Exhibits, and Memorandum Opinion
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`under seal, with a publicly filed version containing strictly limited redactions. As an initial matter,
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`the stipulated protective order requires that this information remain confidential. And the redacted
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`portions of the Briefs, Exhibits, and Memorandum Opinion only pertain to this confidential
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`information. Moreover, the Briefs, Exhibits, and Memorandum Opinion filed under seal contain
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`information that Philip Morris or a third party has designated as competitively sensitive business
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`information, the disclosure of which would cause harm. Sealing these materials is therefore proper
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`because the public’s interest in access is outweighed by a party’s interest in “preserving
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`confidentiality” of limited amounts of confidential information that is “normally unavailable to the
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`public.” Flexible Benefits Council v. Feltman, No. 08-cv-371, 2008 WL 4924711, at *1; U.S. ex
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`rel. Carter, 2011 WL 2077799, at *3.
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`III. CONCLUSION
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`Philip Morris respectfully requests that the Court grant this motion and enter the attached
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`proposed Order.
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`6
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`Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 7 of 8 PageID# 40721
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`Dated: April 5, 2023
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`Respectfully submitted,
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`Jamie Underwood
`jamie.underwood@lw.com (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
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`Gregory K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
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`Counsel for Plaintiff Philip Morris Products
`S.A.
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`7
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`Case 1:20-cv-00393-LMB-WEF Document 1467 Filed 04/05/23 Page 8 of 8 PageID# 40722
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`CERTIFICATE OF SERVICE
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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/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
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`Counsel for Plaintiff Philip Morris Products
`S.A.
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`8
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