Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 1 of 8 PageID# 41489
`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 1 of 8 PagelD# 41489
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`EXHIBIT A
`EXHIBIT A
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`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 2 of 8 PageID# 41490
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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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`[PROPOSED] ORDER GRANTING REYNOLDS’S RENEWED MOTION TO SEAL
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`This matter is before the Court on the motion filed by R.J. Reynolds Vapor Company
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`(“Reynolds”) to renew its motion to file under seal trial exhibits (Dkts. 1241, 1243) that contain
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`confidential information of Reynolds and of third parties, pursuant to Local Civil Rule 5(C) and
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`5(H).
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`Before this Court may seal documents, it must consider both substantive and procedural
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`requirements. Substantively, the Court must determine the nature of the information and the
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`public’s right to access. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir.
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`1988). Although “the Supreme Court has not addressed whether the First Amendment’s right of
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`access extends to civil trials or other aspects of civil cases . . . , the Fourth Circuit[ ] ha[s]
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`recognized that the First Amendment right of access extends to civil trials and some civil filings.”
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`Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011). Even so, public access to
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`civil trial records “is not absolute,” and restrictions can be justified by concerns that such records
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`“might . . . become a vehicle for improper purposes,” such as where the records serve “as sources
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`of business information that might harm a litigant’s competitive standing.” Nixon v. Warner
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`1
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`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 3 of 8 PageID# 41491
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`Commc’ns, Inc., 435 U.S. 589, 598 (1978). In particular, a corporation’s “strong interest in
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`preserving the confidentiality of its proprietary and trade-secret information . . . may justify partial
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`sealing of court records.” Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014); see also Apple,
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`Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1218, 1228-29 (Fed. Cir. 2013).
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`The common law “presumes a right of access to all judicial records and documents.” Level
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`3 Commc’ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 577 (E.D. Va. 2009).
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`However, the presumption “can be rebutted if countervailing interests heavily outweigh the public
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`interests in access.” Id. (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th
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`Cir. 1988)). For example, “courts have refused to permit their files to serve . . . as sources of
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`business information that might harm a litigant’s competitive standing” and have sealed such
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`information from the public. Id. (quoting Nixon, 435 U.S. at 598). Courts consider whether the
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`movant has borne its “burden of showing some significant interest that outweighs the
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`presumption.” Id. (quoting Rushford, 846 F.2d at 253).
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`The First Amendment’s right of public access is “much stronger than the guarantee
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`provided by the common law.” Id. Accordingly, this Court has held that the First Amendment
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`guarantee of public access “applies where efforts are made to seal documents offered into evidence
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`before a court in the course of a public jury trial.” Id. at 579. In determining whether “a particular
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`document sought to be sealed is subject to the First Amendment’s presumptive right of access, the
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`court must weigh and balance competing interests.” Id. The presumption may be overcome “by
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`an overriding interest based on findings that closure is essential to preserve higher values.” Id. at
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`580. Courts have recognized that the presumption may be overcome where “confidential
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`commercial information, such as a trade secret,” must be protected. Id. at 582.
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`Procedurally, the Court must: “(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) provide specific reasons and factual findings supporting its decision to seal
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`the documents and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th
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`Cir. 2000) (citing Stone, 855 F.2d at 181). Public notice can be satisfied through the docketing of
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`a party’s motion to seal. Stone, 855 F.2d at 181 (explaining that to satisfy the notice requirement
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`courts must either “notify persons present in the courtroom of the request” or “docket it ‘reasonably
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`in advance of deciding the issue’”); Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-
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`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report & recommendation adopted, 2012
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`WL 135428 (E.D. Va. Jan. 17, 2012).
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`Upon consideration of Reynolds’s motion to seal and its memorandum in support thereof,
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`the Court hereby FINDS as follows:
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`1.
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`Reynolds’s request satisfies the substantive requirements. Its request is narrowly
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`tailored. Reynolds seeks to seal and redact from the public record information designated by
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`Reynolds and non-parties as confidential. The majority of the exhibits and redacted information
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`that Reynolds requests be sealed were not the subject of witness testimony and were not displayed
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`to the jury at trial. Reynolds seeks to seal pre-market applications (PMTAs) for its VUSE products,
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`CAD files, licensing agreements and negotiations with non-parties, and non-public financial
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`information, including forecasts, costs analyses (including cost information from Reynolds’s third-
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`party supplier), and financial information for individual VUSE product lines. These materials fall
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`within the Protective Order and Reynolds has maintained the confidentiality of these documents.
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`2.
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`Each of these documents serve “as sources of business information that might harm
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`[Reynolds’s] competitive standing.” Nixon, 435 U.S. at 598. Here, Reynolds’s “strong interest in
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`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 5 of 8 PageID# 41493
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`preserving the confidentiality of its proprietary and trade-secret information . . . justif[ies] partial
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`sealing of court records.” Doe, 749 F.3d at 269; see also Apple, Inc., 727 F.3d at 1218, 1228-29.
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`The CAD files for the VUSE products are particularly sensitive technical information that
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`is confidential. The public has no need for the entire files themselves. Instead, witnesses,
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`including expert witnesses, were permitted to describe facts found in the CAD files and even used
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`images derived from the CAD files. These exhibits contain innumerable “details that were not
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`referenced during testimony or by counsel during opening statements or closing arguments.”
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`Syngenta Crop Prot., LLC v. Willowood, LLC, No. 1:15-CV-274, 2017 WL 6001818, at *6
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`(M.D.N.C. Dec. 4, 2017). Moreover, given the nature of these files, they cannot be redacted.
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`Full copies of the Vuse PMTAs are not necessary for the public to understand what
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`happened at trial. In particular, this is a patent infringement case that does not turn on the data in
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`the form submitted to FDA, so the PMTAs “will shed no light” on the issues the jury considered
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`at trial. In re Incretin-Based Therapies Prod. Liab. Litig., 2015 WL 11658712, at *3. The PMTAs
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`also disclose the composition of the e-liquid in the Vuse products which is a trade secret and is not
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`relevant to the claims of patent infringement in this case. In addition to the product-related details,
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`the structure and content of Reynolds’s PMTA submissions are also confidential and competitively
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`sensitive, because they provide insight into Reynolds’s decisions and strategy regarding scientific
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`content, tests, and data and the organization of this information as provided in the PMTAs.
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`Witnesses, including expert witnesses, were permitted to describe the facts found in the PMTAs
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`and use images derived from the PMTAs. However, their testimony did not disclose the regulatory
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`submissions themselves. These exhibits contain innumerable “details that were not referenced
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`during testimony or by counsel during opening statements or closing arguments.” Syngenta, 2017
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`WL 6001818, at *6; see also Airboss Rubber Compounding (NC), Inc. v. Kardoes Rubber Co.,
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`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 6 of 8 PageID# 41494
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`No. 1:12-CV-352, 2013 WL 12380267, at *1 (M.D.N.C. July 23, 2013) (granting motion to seal
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`“certain business and proprietary information which is not ordinarily public” because “[t]he
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`competitive and financial interests of the parties would be harmed by public disclosure”).
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`The parties’ damages expert witnesses relied on certain terms from the third-party
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`agreement with Fontem in stating their opinions, but that does not justify disclosing the entire
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`agreement and related documents, or the underlying negotiations, to the public at large. See, e.g.,
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`LifeNet Health v. LifeCell Corp., No. 2:13-CV-486, 2015 WL 12517430, at *4 (E.D. Va. Feb. 12,
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`2015) (holding that the defendant’s “interest in protecting its and third-parties confidential
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`commercial information is significant enough to outweigh the First Amendment right of access in
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`this case”); In re Zetia (Ezetimibe) Antitrust Litig., No. 2:18-MD-2836, 2018 WL 6795835, at *1
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`(E.D. Va. Nov. 1, 2018) (granting motion to seal agreement including “detailed licensing terms,
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`covenants regarding the enforceability of patents, and an express agreement that the parties would
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`keep its terms confidential”).
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`Although certain portions of Philip Morris’s damages expert’s testimony regarding the
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`measure of appropriate damages relied on cost information of the Vuse products, disclosing a full
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`copy of the Vuse bill of materials from Reynolds’s third-party supplier to the public would harm
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`the Reynolds’s third-party supplier and Reynolds in future business dealings and would provide
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`an unfair advantage to competitors by giving them the benefit of the research and development of
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`the third parties and Reynolds without the same investment. The bill of materials may also be
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`subject to a contractual confidentiality obligation.
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`Similarly, Reynolds seeks to seal only the portions of its confidential financial documents,
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`including future forecasts and cost analyses, that were not discussed or displayed at trial.
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`Reynolds’s narrow request to seal leaves evidence sufficient for the public “to evaluate the fairness
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`-5-
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`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 7 of 8 PageID# 41495
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`of the proceedings and of the result.” Syngenta, 2017 WL 6001818, at *6. The minimal interest
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`that the public may have in the specific financial information that Reynolds seeks to seal is heavily
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`outweighed by the clear and substantial risk of competitive and financial harm to Reynolds if the
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`information is revealed. See id. (“The Court finds that Syngenta has demonstrated that its
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`compelling interest in protecting its competitive standing heavily outweighs the public’s right to
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`access these trial exhibits.”).
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`3.
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`Reynolds has also satisfied the procedural requirements. The public has received
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`notice of the request to seal and has had reasonable opportunity to object. Reynolds’s sealing
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`motion was publicly docketed in accordance with Local Civil Rule 5. Reynolds’s motion and
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`memorandum in support provided a non-confidential description of the exhibits Reynolds seeks to
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`have sealed. Dkts. 1241, 1243. Philip Morris has had an opportunity to respond. The “public has
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`had ample opportunity to object” to Reynolds’s motion and, because “the Court has received no
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`objections,” the first requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp.
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`v. Wildflower Int’l, Inc., No. 1:09-CV-123 (JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30,
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`2009); United States ex rel Carter v. Halliburton Co., No. 1:10-CV-864 (JCC/TCB), 2011 WL
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`2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to
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`seal that allowed interested parties a reasonable opportunity to object—nearly two weeks.”).
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`Reynolds has explained why sealing is necessary and has provided the appropriate
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`evidentiary support in the form of a supporting declaration for its sealing request. Reynolds’s
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`request referenced the governing case law and analyzed the appropriate standard for filing trial
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`exhibits under seal, and adequately described how that standard has been satisfied.
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`Therefore, based on the findings above, for good cause shown, it is hereby
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`Case 1:20-cv-00393-LMB-WEF Document 1477-1 Filed 04/21/23 Page 8 of 8 PageID# 41496
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`ORDERED that the motion is GRANTED, and the trial exhibits identified in Exhibit B
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`Reynolds’s Motion to Renew its Motion to Seal Trial Exhibits will be REDACTED or SEALED
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`in their entirety as described in Reynolds’s Motion to Renew its Motion to Seal Trial Exhibits and
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`in accordance with the proposed redactions sent to the Court.
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`Reynolds is granted leave to file versions of the trial exhibits identified Exhibit B
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`Reynolds’s Motion to Renew its Motion to Seal Trial Exhibits that are REDACTED in accordance
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`with the proposed redactions sent to the Court.
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`It is FURTHER ORDERED that the trial exhibits identified in Exhibit B to Reynolds’s
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`Motion to Renew its Motion to Seal Trial Exhibits shall remain REDACTED or SEALED until
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`further order of the Court.
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`ENTERED this _____ day of _________________, 2022.
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`Alexandria, Virginia
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`__________________________________________
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`LEONIE M. BRINKEMA
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`UNITED STATES DISTRICT JUDGE
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