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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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`PHILIP MORRIS’ MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF,
`REYNOLDS’ RENEWED MOTION TO SEAL
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`Case 1:20-cv-00393-LMB-WEF Document 1474 Filed 04/12/23 Page 2 of 7 PageID# 41468
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`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Local Civil Rule 5(C),
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`Plaintiff Philip Morris Products S.A. (“Philip Morris”) respectfully submits this memorandum in
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`response to, and in support of the following motion to seal (“Sealing Motion”) filed by R.J.
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`Reynolds Vapor Company (“Reynolds”):
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`• Motion for Leave to Seal Reynolds’ Opposition to Plaintiff’s Motion for a
`Permanent Injunction, or Alternatively, an Ongoing Royalty and Exhibits 1-4,
`10-14, 19, 25, 28-31, 39, 42, and 44 thereto (Dkt. 1458).
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`The proposed sealed materials identified above include Philip Morris’ confidential, financial,
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`proprietary, and competitively sensitive business information that falls within the scope of the
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`Stipulated Protective Order (Dkt. 103), which could cause harm if such information were to be
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`released publicly. These confidential materials should remain under seal.
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`I.
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`LEGAL STANDARD
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`Local Civil Rule 5(C) requires that, when a party moves to file material under seal that
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`another party has designated as confidential, “the party designating the material as confidential
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`must file a response to the motion complying with requirements (2), (3), and (4) above along with
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`a proposed order” that “shall recite the findings required by governing case law to support the
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`proposed sealing.” Loc. R. Civ. P. 5(C). These requirements are: “(2) A statement why sealing is
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`necessary, and why another procedure will not suffice, as well as appropriate evidentiary support
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`for the sealing request; (3) References to the governing case law, an analysis of the appropriate
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`standard to be applied for that specific filing, and a description of how that standard has been
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`satisfied; [and] (4) Unless permanent sealing is sought, a statement as to the period of time the
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`party seeks to have the matter maintained under seal and how the matter is to be handled upon
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`unsealing.” Id.
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`The Supreme Court has held that “the right [of the public] to inspect and copy judicial
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`records is not absolute.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). For
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`Case 1:20-cv-00393-LMB-WEF Document 1474 Filed 04/12/23 Page 3 of 7 PageID# 41469
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`example, access to court records has been denied where “court files might have become a vehicle
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`for improper purposes.” Id. In particular, a corporation’s “strong interest in preserving the
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`confidentiality of its proprietary and trade-secret information … may justify partial sealing of court
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`records.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014). As the Fourth Circuit has
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`explained, a court has the authority to seal court documents “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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`II.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`After conferring with Philip Morris, Reynolds moved for leave to file under seal the
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`unredacted versions of its memorandum submitted in support of Reynolds’ Opposition to
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`Plaintiff’s Motion for a Permanent Injunction, or Alternatively, an Ongoing Royalty
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`(“Opposition”), as well as certain exhibits accompanying Reynolds’ Opposition. See Dkt. 1458.
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`Specifically, the sensitive information from Reynolds’ Opposition, and Exhibits 4, 10-14, 19, 25,
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`28-31, 39, and 42 thereto, that Reynolds moved for leave to file under seal, and to redact from a
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`publicly filed version, includes proprietary and commercially sensitive information and documents
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`of Philip Morris and/or third parties (e.g., Altria Client Services LLC), which could cause harm if
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`they were to be released publicly.
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`III. ARGUMENT
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`Although there is a general presumption that the public has the right to access documents
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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, 218 F.3d at 302 (citation omitted); Stone v. Univ.
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`of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To determine whether the interests in
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`sealing the records outweigh the public’s right of access, a court must follow a three-step process:
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`“(1) provide public notice of the request to seal and allow interested parties a reasonable
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`Case 1:20-cv-00393-LMB-WEF Document 1474 Filed 04/12/23 Page 4 of 7 PageID# 41470
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`opportunity to object, (2) consider less drastic alternatives to sealing the documents, and
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`(3) provide specific reasons and factual findings supporting its decision to seal the documents and
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`for rejecting the alternatives.” Ashcraft, 218 F.3d at 302; see also Adams v. Object Innovation,
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`Inc., No. 11-cv-272, 2011 WL 7042224, at *4 (Dec. 5, 2011), report & recommendation adopted,
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`2012 WL 135428 (E.D. Va. Jan. 17, 2012). Here, the three requirements are met.
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`First, the public has received notice of the request to seal and has had reasonable
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`opportunity to object. Reynolds’ Sealing Motion was publicly docketed on April 5, 2023, in
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`accordance with Local Civil Rule 5, and Philip Morris now files this memorandum in support of
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`sealing. Since the “public has had ample opportunity to object” to Reynolds’ Sealing Motion and
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`“the Court has received no objections,” the first requirement under Ashcraft is met. 218 F.3d at
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`302; see also GTSI Corp. v. Wildflower Int’l, Inc., No. 09-cv-123, 2009 WL 1248114, at *9 (E.D.
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`Va. Apr. 30, 2009); U.S. ex rel Carter v. Halliburton Co., No. 10-cv-864, 2011 WL 2077799, at
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`*3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that
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`allowed interested parties a reasonable opportunity to object—nearly two weeks.”).
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`Second, Reynolds seeks to seal and redact from the public record only information that
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`the parties must keep confidential pursuant to the Stipulated Protective Order. Dkt. 103.
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`Reynolds filed a publicly redacted version of its Opposition and Exhibits, in addition to a sealed
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`version, and redacted only the limited portions that Reynolds seeks to seal. 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,
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`constitutes the least drastic method of shielding the information at issue.”). The public has no
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`legitimate interest in information that is confidential to Philip Morris and/or third parties. Id. The
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`Case 1:20-cv-00393-LMB-WEF Document 1474 Filed 04/12/23 Page 5 of 7 PageID# 41471
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`information that Reynolds seeks to seal includes confidential, proprietary, and competitively
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`sensitive business information belonging to Philip Morris and/or third parties (e.g., Altria Client
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`Services LLC), and thus Philip Morris and such third parties could face harm if such information
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`were to be released publicly. For example, certain of the materials sought to be sealed include
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`highly confidential terms of agreements that Philip Morris has entered into that, if disclosed,
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`would allow third parties to increase their negotiating position against Philip Morris in the future.
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`Similarly, certain of the materials sought to be sealed include highly confidential sales data that,
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`if disclosed, would allow competitors to gain an unfair advantage over Philip Morris in the
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`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 such that they may more effectively compete against Philip
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`Morris. Other materials sought to be sealed include information that third parties have designated
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`confidential, which Philip Morris is required to keep confidential. No procedure other than filing
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`this information under seal is sufficient to preserve the confidential and sensitive nature of the
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`information.
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`Third, there is support for filing portions of Reynolds’ unredacted Opposition and
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`Exhibits under seal, with a publicly filed version containing strictly limited redactions. Reynolds’
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`Opposition and Exhibits contain material that falls within the scope of the Stipulated Protective
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`Order. Dkt. 103. The Stipulated Protective Order requires that this information remain
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`confidential. Moreover, the Opposition and Exhibits filed under seal contain information that
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`Philip Morris or third parties have designated as competitively sensitive business information,
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`the disclosure of which would cause harm. Placing these materials under seal is proper because
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`the public’s interest in access is outweighed by a party’s interest in “preserving confidentiality”
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`Case 1:20-cv-00393-LMB-WEF Document 1474 Filed 04/12/23 Page 6 of 7 PageID# 41472
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`of the limited amount of confidential information that is “normally unavailable to the public.”
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`Flexible Benefits Council v. Feltman, No. 08-cv-371, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13,
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`2008); see also U.S. ex rel. Carter, 2011 WL 2077799, at *3. As discussed, the portions of
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`Reynolds’ Opposition and Exhibits sealed contain confidential information of Philip Morris
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`and/or third parties.
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`IV. CONCLUSION
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`Philip Morris respectfully request that Reynolds’ Sealing Motion (Dkt. 1458) be granted
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`and that such sealing be maintained until further Order of this Court.
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`Dated: April 12, 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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`5
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`Case 1:20-cv-00393-LMB-WEF Document 1474 Filed 04/12/23 Page 7 of 7 PageID# 41473
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 12th 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)
`max.grant@lw.com
`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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