Case 1:20-cv-00393-LMB-WEF Document 1477 Filed 04/21/23 Page 1 of 7 PageID# 41482
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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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`Case No. 1:20-cv-00393-LMB-WEF
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`DEFENDANT’S RENEWED MOTION TO SEAL EXHIBITS ENTERED INTO
`EVIDENCE AT TRIAL
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`R.J. Reynolds Vapor Company (“Reynolds”) respectfully renews its Motion to Seal Trial
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`Exhibits. (Dkts. 1241, 1243.) The Court previously granted Reynolds’s Motion to Seal to the
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`extent that Philip Morris Products S.A. (“Philip Morris”) does not object. (Dkt. 1266.) The Court
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`instructed Reynolds to file the present motion listing the specific exhibits tendered into evidence
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`that should be sealed. Trial Tr. at 424:11-18. Accordingly, Reynolds’s present motion concerns
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`a narrow subset of the exhibits previously included in its original Motion to Seal Trial Exhibits.
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`Attached to this motion are a Proposed Order (Exhibit A) and a list of exhibits (Exhibit B) that
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`were tendered into evidence at trial that Reynolds seeks to seal or redact. Reynolds’s seeks to seal
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`or redact from the public record a small subset of documents falling into four distinct categories:
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`(1) computer aided design (“CAD”) files, (2) Vuse PMTAs, (3) third-party settlement agreements
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`and negotiations, and (4) financial documents including forecasts and cost analyses.
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`To assist the Court in its review, and to avoid the need to file this motion under seal,
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`courtesy copies of the trial exhibits listed in Exhibit B and the proposed redactions will be sent to
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`the Court in a digital file format on a thumb drive. However, copies of the CAD files have not
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`been included because the CAD files cannot be viewed without a particular software.
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`Reynolds maintains that the CAD file exhibits should be sealed in their entirety and Philip
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`Morris does not oppose. With respect to the Vuse PMTAs, third-party settlement, and financial
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`documents, Philip Morris stated that it does not believe that the subject documents require sealing
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`or redaction, but it does not oppose Reynolds’s motion to seal.
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`As explained below and in Dkt. 1243,1 Reynolds respectfully requests that the Court seal
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`from the public record the confidential information in the trial exhibits identified below, in Exhibit
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`B, and in the proposed redactions sent to the Court.
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`A. CAD Files
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`The CAD file exhibits, PX-262, PX-265, RX-0870, and RX-1327, should be sealed in their
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`entirety from the public record because they reveal internal dimensions of the product,
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`manufacturing tolerances, manufacturing notes, material compositions, version revision history,
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`and design notes, among other highly confidential technical information. (Dkt. 1243 at 8, Ex. 2,
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`Leyes Decl. ¶ 9.)
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`B. Vuse PMTAs
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`Reynolds maintains that the Vuse PMTAs, PX-023, PX-028, PX-030, and PX-122, should
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`be sealed in their entirety from the public record. The Court indicated that it “would clearly be
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`appropriate” to seal the PMTAs submitted to the FDA. Trial Tr. at 1069:6-25. As explained in
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`1 Reynolds’s Motion to Seal Trial Exhibits and accompany memorandum in support (Dkts. 1241,
`1243) are still the operative filings that satisfied the procedural and substantive requirements the
`movant must satisfy for the Court to seal materials. The Court granted Reynolds’s Motion to
`Seal to the extent that Philip Morris Products S.A. (“Philip Morris”) does not object. (Dkt.
`1266.) Reynolds now files this renewed motion identifying a much narrower subset of trial
`exhibits compared to what was previously identified in Dkt. 1243 that it seeks to either partially
`redact or seal from the public record.
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`Reynolds’s previously-filed memorandum in support of sealing, Reynolds submitted its PMTAs
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`confidentially to FDA and FDA has maintained the confidentiality to the extent the information
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`contained in the PMTAs is exempt from public disclosure under federal law. (Dkt. 1243 at 5.)
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`Reynolds holds its regulatory strategy in strict confidence. Disclosure of these materials could
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`provide competitors with an unfair advantage and cause irreparable harm to Reynolds because
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`competitors could use the information contained within the PMTAs and the regulatory strategy
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`documents to chart their successful regulatory path. (Id.; id. at Ex. 2, Leyes Decl. ¶¶ 6-8.)
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`C. Third-Party Settlement Agreements and Negotiations
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`Reynolds requests that the Court seal entirely the exhibits related to Reynolds negotiations
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`and exchange of draft agreements with non-party Fontem leading up to the Fontem-RJRV
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`settlement agreement that were not discussed or otherwise displayed at trial. These exhibits are
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`PX-672, PX-673, and PX-678. Reynolds maintains these negotiations as confidential. Disclosure
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`of these documents would disadvantage Reynolds in future contract negotiations by making its
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`business and patent-licensing strategies known to the public and its competitors. (Id. at Ex. 2,
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`Leyes Decl. ¶ 10.)
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`With respect to the remaining exhibits in this category, PX-125, PX-668, PX-676, and PX-
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`677, Reynolds proposes specific redactions to seal from the public record the confidential
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`information that was not discussed or displayed at trial. The material that Reynolds requests be
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`redacted from the public record includes settlement contract terms that Reynolds maintains as
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`confidential. Disclosure of material that Reynolds seeks to redact from the public in these exhibits
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`would disadvantage Reynolds in future contract negotiations by making its business and patent-
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`licensing strategies known to the public and its competitors. (Id. at Ex. 2, Leyes Decl. ¶ 10.)
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`D. Financial Documents Including Forecasts and Cost Analyses
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`Reynolds requests that the Court seal entirely from the public record the following exhibits:
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`PX-132, PX-345, PX-351, PX-357, PX-397, PX-644, PX-651, PX-323, PX-347, PX-350, PX-353
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`to PX-356, PX-359, PX-360, PX-370, PX-626 to PX-6292, PX-695, and PX-697. Reynolds’s
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`review of the trial transcript, trial demonstratives, and trial deposition videos and clip reports
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`indicate that the content of these exhibits were not discussed or displayed at trial. These exhibits
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`include future forecasts, detailed financial statements and cost analyses of individual Vuse
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`products, and attachments to Philip Morris’s damages expert report regarding the same
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`information.
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`One of these exhibits, PX-697, is a cost bill of materials from Reynolds’s third-party
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`supplier. Revealing this document to the public would harm the current relationship between
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`Reynolds and its third party supplier and jeopardize any future dealings while also providing
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`Reynolds’s competitors with confidential information regarding technical and cost details of the
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`Vuse products. (Id. at Ex. 2, Leyes Decl. ¶ 11.) The document may also be subject to a
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`confidentiality clause. (Id.)
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`For the remaining exhibits in this category, PX-345, PX-387, PX-643, and RX-1199,
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`Reynolds requests the Court seal from the public record the information Reynolds has identified
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`with proposed redactions. The proposed redactions reflect confidential information that was not
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`discussed or displayed at trial. PX-345 and RX-1199 are Excel spreadsheets. Reynolds requests
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`the Court redact and seal from the public record everything except the following: cells A3, A35,
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`B35, E2, E3 in the “WACC” tab of PX-345 and cells A3, B33, D33 in the “solo+” tab of RX-1199.
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`2 PX-626 to PX-629 and PX-695 were inadvertently left off Dkt. 1243. They contain sensitive,
`non-public financial information on the individual Vuse product lines (returns data and a profit
`and loss statement).
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`Public disclosure of this confidential financial information would give Reynolds’s
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`competitors, suppliers, and potential business partners a competitive and financial advantage,
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`allowing them to undercut Reynolds in competitive purchasing and sales situations, as well as in
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`preparing competitive sales, consumer research, marketing, product design, licensing strategies,
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`and product distribution strategies. (Id. at 23, id. at Ex. 2, Leyes Decl. ¶¶ 6-8.) For example,
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`Reynolds’s suppliers could use cost information to negotiate higher price terms. (Id. at 13, id. at
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`Ex. 2, Leyes Decl. ¶ 12.)
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`CONCLUSION
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`Reynolds respectfully requests that the Court grant its renewed motion to seal the trial
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`exhibits identified in this motion and in Exhibit B. For the reasons explained above and in Dkt.
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`1243, Reynolds requests that the exhibits be permanently sealed. If the motion is granted,
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`Reynolds will promptly submit redacted versions of trial exhibits for which Reynolds has
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`requested redactions.
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`Case 1:20-cv-00393-LMB-WEF Document 1477 Filed 04/21/23 Page 6 of 7 PageID# 41487
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`Dated: April 21, 2023
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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
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`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
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (202) 787-1312
`Email: cmolster@molsterlaw.com
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`Counsel for R.J. Reynolds Vapor Company
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`Case 1:20-cv-00393-LMB-WEF Document 1477 Filed 04/21/23 Page 7 of 7 PageID# 41488
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 21st 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
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`Counsel for R.J. Reynolds Vapor Company
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