`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`
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`v.
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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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`
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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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`Civil Action No. 1:20-cv-393
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`DEFENDANTS’ MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF,
`PLAINTIFFS’ MOTION TO SEAL PLAINTIFFS’ REPLY IN SUPPORT OF THEIR
`SECOND MOTION TO COMPEL RESPONSIVE DOCUMENT RELATED TO
`DEFENDANTS’ ’374 PATENT INFRINGEMENT COUNTERCLAIM
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`Case 1:20-cv-00393-LO-TCB Document 519 Filed 03/25/21 Page 2 of 7 PageID# 11467
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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”) submit this memorandum in response to, and in support of, Plaintiffs RAI Strategic
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`Holdings, Inc.’s and R.J. Reynolds Vapor Company’s (collectively, “Plaintiffs”) Motion to Seal
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`their Reply in Support of their Second Motion to Compel Responsive Document Related to
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`Defendants’ ’374 Patent Infringement Counterclaim and accompanying Exhibits A and B. (Dkts.
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`498, 501.) The proposed sealed material includes confidential, proprietary, and competitively
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`sensitive business information of Plaintiffs, Defendants, and/or third parties that falls within the
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`scope of the Stipulated Protective Order. (Dkt. 103.) These confidential materials should remain
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`under seal.
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`I.
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`LEGAL STANDARD
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`Local Civil Rule 5 requires that, when a party moves to file material under seal that another
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`party has designated as confidential, “the party designating the material as confidential must file
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`a response to the motion complying with requirements (2), (3), and (4) [] along with a proposed
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`order” that “shall recite the findings required by governing case law to support the proposed
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`sealing.”
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`The materials that Plaintiffs move for leave to seal include highly confidential and
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`proprietary business and technological information of the Defendants and third parties and should
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`be kept under seal permanently for the reasons described below.
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`II.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Plaintiffs seek leave to file under seal an un-redacted version of Plaintiffs’ Reply in
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`Support of their Second Motion to Compel Responsive Document Related to Defendants’ ’374
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`Patent Infringement Counterclaim and accompanying Exhibits A and B. Specifically, the
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`1
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`Case 1:20-cv-00393-LO-TCB Document 519 Filed 03/25/21 Page 3 of 7 PageID# 11468
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`sensitive information that Plaintiffs move for leave to file under seal, and to redact from a publicly
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`filed version, includes proprietary and commercially sensitive information and documents of
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`Defendants and third parties.
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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 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 has had reasonable
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`opportunity to object. Plaintiffs’ sealing motion was publicly docketed a week ago on March 18,
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`2021, in accordance with Local Civil Rule 5, and Defendants now file this memorandum in support
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`of sealing. Since the “public has had ample opportunity to object” to Plaintiffs’ motion and “the
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`Court has received no objections,” the first requirement under Ashcraft, 218 F.3d at 302, has been
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`satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9
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`(E.D. Va. Apr. 30, 2009); U.S. ex rel Carter v. Halliburton Co., No. 1:10-cv-864-JCC/TCB, 2011
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`2
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`Case 1:20-cv-00393-LO-TCB Document 519 Filed 03/25/21 Page 4 of 7 PageID# 11469
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`WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request
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`to seal that allowed interested parties a reasonable opportunity to object—nearly two weeks.”).
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`Second, Plaintiffs seek to seal and redact from the public record only information that the
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`parties must keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) Plaintiffs
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`have filed publicly a redacted version of Plaintiffs’ Reply in Support of their Second Motion to
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`Compel Responsive Document Related to Defendants’ ’374 Patent Infringement Counterclaim
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`(Dkt. 502), in addition to a sealed version, and have redacted only those limited portions it seeks
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`to seal. 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 “proposal to
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`redact only the proprietary and confidential information, rather than seal the entirety of his
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`declaration, constitutes the least drastic method of shielding the information at issue.”). The
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`public has no legitimate interest in information that is confidential to Defendants, Plaintiffs,
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`and/or third parties. Id. at *4. The information that Plaintiffs seek to seal includes confidential,
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`proprietary, and competitively sensitive business information of Defendants, who could face
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`harm if such information were to be released publicly. No procedure other than filing this
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`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 Plaintiffs’ Reply in Support of their Second
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`Motion to Compel Responsive Document Related to Defendants’ ’374 Patent Infringement
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`Counterclaim and accompanying Exhibits A and B under seal, with a publicly filed version
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`containing strictly limited redactions. Placing these materials under seal is proper because the
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`public’s interest in access is outweighed by a party’s interest in “preserving confidentiality” of
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`the limited amount of confidential information that is “normally unavailable to the public.”
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`3
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`Case 1:20-cv-00393-LO-TCB Document 519 Filed 03/25/21 Page 5 of 7 PageID# 11470
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`Flexible Benefits Council v. Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va.
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`Nov. 13, 2008); U.S. ex rel. Carter, 2011 WL 2077799, at *3. As noted, the portions of Plaintiffs’
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`Reply in Support of their Second Motion to Compel Responsive Document Related to
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`Defendants’ ’374 Patent Infringement that are redacted concern confidential information of
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`Defendants and/or third parties. The same is true for accompanying Exhibits A and B.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendants respectfully request that Plaintiffs’ Motion to Seal
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`be granted and that such sealing be maintained until further Order of this Court.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 519 Filed 03/25/21 Page 6 of 7 PageID# 11471
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`Dated: March 25, 2021
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`By: /s/ Maximilian A. Grant
`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
`
`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
`
`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
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for Defendants-Counterclaim Plaintiffs
`Altria Client Services LLC, Philip Morris USA Inc.,
`and Philip Morris Products S.A.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 519 Filed 03/25/21 Page 7 of 7 PageID# 11472
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 25th 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
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`filing to all 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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`6
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