Case 1:20-cv-00393-LO-TCB Document 495 Filed 03/17/21 Page 1 of 6 PageID# 11207
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`Civil Action No. 1:20-cv-393
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim
`Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
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`Defendants and Counterclaim
`Plaintiffs.
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`MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Defendants Altria Client Services, LLC (“ACS”), Philip
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`Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”) (collectively,
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`“Defendants”) hereby move the Court for leave to file Defendants’ Opposition to Plaintiffs’
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`Second Motion
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`to Compel Production of Documents Related
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`to Defendants’
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`’374 Patent Infringement Counterclaim and certain accompanying exhibits under seal.
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`Defendants also move for leave to file a public, redacted version of Defendants’
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`Opposition, certain declarations, and accompanying exhibits that omit confidential information.
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`All of the material Defendants seek to file under seal is confidential under the stipulated protective
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`order.
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Defendants seek leave to file the following documents under seal:
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`1
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`II.
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`1. An un-redacted version of Defendants’ Opposition to Plaintiffs’ Second Motion to
`Compel Production of Documents Related to Defendants’ ’374 Patent Infringement
`Counterclaim.
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`2. The confidential declaration of Daniel McNeely regarding certain facts pertinent to
`discovery in this case;
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`3. Confidential correspondence between counsel for the parties of this case, labeled
`as Exhibit Nos. 1, 2, 9-13;
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`4. Confidential business documents, labeled as Exhibit Nos. 3-6;
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`5. The confidential declaration of Mr. Henry Lam, labeled as Exhibit No. 7;
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`6. Confidential agreement, labeled as Exhibit No. 8.
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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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`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-REP-DWD,
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`2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL
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`135428 (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. Plaintiffs will have an opportunity to respond,
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`and once the “public has had ample opportunity to object” to Defendants’ 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-JCC, 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-JCC-TCB, 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, Defendants seek to seal and to redact from the public record only information that
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`the parties must keep confidential by the stipulated protective order. Defendants will file publicly
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`a redacted version of its Opposition, declarations, and sealed exhibits in addition to a sealed
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`version. This selective and narrow protection of confidential material constitutes “the least drastic
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`method of shielding the information at issue.” Adams, 2011 WL 7042224, at *4. The public has
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`no legitimate interest in information that is confidential to Defendants and Plaintiffs. See Adams,
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`2011 WL 7042224, at *4 (“[T]here is no legitimate public interest in disclosing the proprietary
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`and confidential information of [the defendant] . . . and disclosure to the public could result in
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`significant damage to the company.”). The information that Defendants seek to seal and redact
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`includes confidential, proprietary, and competitively sensitive business information of Defendants,
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`Plaintiffs, and/or third parties, each of which could face harm if such information were to be
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`released publicly.
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`Third, there is support for filing portions of Defendants’ Opposition (including the sealed
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`declarations and exhibits) under seal, with a publicly filed version containing strictly limited
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`redactions. As an initial matter, the stipulated protective order requires that this information
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`remain confidential. And the redacted portions of the Opposition only pertain to this confidential
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`information. The same is true with the sealed declarations and exhibits. Sealing portions of the
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`Opposition, declarations, and exhibits is therefore proper because the public’s interest in access is
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`3
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`outweighed by a party’s interest in “preserving confidentiality” of limited amounts of confidential
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`information that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman,
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`No. 08-cv-00371-JCC, 2008 WL 4924711, at *1; U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`III. CONCLUSION
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`For the foregoing reasons, Defendants respectfully request that the Court grant this Motion
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`and enter the proposed Order filed herewith.
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`Dated: March 17, 2021
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`Respectfully submitted,
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`/s/ Lawrence J. Gotts
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@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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`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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`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
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`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for Defendants and Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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`Case 1:20-cv-00393-LO-TCB Document 495 Filed 03/17/21 Page 6 of 6 PageID# 11212
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 17th day of March, 2021, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such
`filing to all counsel of record:
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`/s/ Lawrence J. Gotts
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`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 Defendants Altria Client
`Services LLC, Philip Morris USA Inc., and
`Philip Morris Products S.A.
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