Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 1 of 7 PageID# 11512
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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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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`
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`Case No. 1:20-cv-00393-LO-TCB
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`MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION TO SEAL PLAINTIFF’S
`ANSWER TO DEFENDANT PHILIP MORRIS PRODUCTS S.A.’S SECOND AMENDED
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`COUNTERCLAIMS
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`Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 2 of 7 PageID# 11513
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`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Rule 5(C) of the Local
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`Civil Rules, Plaintiffs RAI Strategic Holdings, Inc., and R.J. Reynolds Vapor Company
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`(collectively, “Plaintiffs”) respectfully submit this memorandum in support of their Motion to Seal.
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`The proposed sealed material includes confidential, proprietary, and competitively sensitive
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`business information of Plaintiffs and falls within the scope of the Stipulated Protective Order.
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`(Dkt. 103.) 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 requires that, when a party moves to file material under seal, the party
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`must file contemporaneously with the material for which sealing is requested a motion for leave
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`to file under seal, a non-confidential supporting memorandum, and a separate non-confidential
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`notice that specifically identifies the motion as a sealing motion, and a non-confidential proposed
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`order that recites the findings required by governing case law to support the propose sealing. The
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`non-confidential memorandum must include:
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`(1) A non-confidential description of what material has been filed under seal;
`(2) A statement why sealing is necessary, and why another procedure will not
`suffice, as well as appropriate evidentiary support for the sealing request;
`(3) References to the governing case law, an analysis of the appropriate standard to
`be applied for that specific filing, and a description of how that standard has
`been satisfied;
`(4) Unless permanent sealing is sought, a statement as to the period of time the
`party seeks to have the matter maintained under seal and how the matter is to
`be handled upon unsealing.
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`Loc. R. Civ. P. 5(C).
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`“[T]he right [of the public] to inspect and copy judicial records is not absolute.” Nixon v.
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`Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Access to court records has been denied where
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`“court files might have become a vehicle for improper purposes.” Id. In particular, a corporation’s
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`“strong interest in preserving the confidentiality of its proprietary and trade-secret information …
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`2
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`Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 3 of 7 PageID# 11514
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`may justify partial sealing of court records.” Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir.
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`2014). As set forth in the Fourth Circuit’s decision in Ashcraft v. Connoco, Inc., a court has the
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`authority to seal court documents “if the public’s right of access is outweighed by competing
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`interests.” 218 F.3d 282, 288 (4th Cir. 2000). Before granting a motion to seal, a court must
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`consider the following: “(1) provide public notice of the request to seal and allow interested parties
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`a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents,
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`and (3) provide specific reasons and factual findings supporting its decision to seal the documents
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`and for rejecting the alternatives.” Id.; 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 and recommendation adopted,
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`2012 WL 135428 (E.D. Va. Jan. 17, 2012). All three requirements are met here.
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`The materials that Plaintiffs move for leave to seal include highly confidential and
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`proprietary business information of the Plaintiffs and should be kept under seal permanently for
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`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’ Answer to
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`Defendant Philip Morris Products S.A.’s Second Amended Counterclaims. Specifically, the
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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 materials from Plaintiffs, such as
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`information related to Plaintiffs’ legal activities in connection with product development.
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`III. ARGUMENT
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`A. THE PUBLIC HAS HAD AMPLE NOTICE.
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`The public has received notice of the request to seal and has had reasonable opportunity to
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`object. Plaintiffs’ sealing motion was publicly docketed in accordance with Local Civil Rule 5.
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`Defendants will have an opportunity to respond and, once the “public has had ample opportunity
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`3
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`Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 4 of 7 PageID# 11515
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`to object” to Plaintiffs’ motion and “the Court has received no objections,” the first requirement
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`under Ashcraft, 218 F.3d at 302, may be deemed satisfied. GTSI Corp. v. Wildflower Int’l, Inc.,
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`No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel Carter v.
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`Halliburton Co., No. 1:10-cv-864-JCC/TCB, 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011)
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`(“[T]he parties provided public notice of the request to seal that allowed interested parties a
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`reasonable opportunity to object—nearly two weeks.”).
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`B.
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`PLAINTIFFS HAVE SOUGHT THE LEAST DRASTIC MEASURES.
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`Plaintiffs seek to seal and redact from the public record only information that the parties
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`must keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) Plaintiffs have filed
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`publicly a redacted version of Plaintiffs’ Answer to Defendant Philip Morris Products S.A.’s
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`Second Amended Counterclaims, in addition to a sealed version, and have redacted only those
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`limited portions it seeks to seal. This selective and narrow protection of confidential material
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`constitutes the least drastic method of shielding the information at issue. Adams, 2011 WL
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`7042224, at *4 (The “proposal to redact only the proprietary and confidential information, rather
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`than seal the entirety of his declaration, constitutes the least drastic method of shielding the
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`information at issue.”). The information that Plaintiffs seek to seal includes confidential,
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`proprietary, and competitively sensitive business information of Plaintiffs, who could face harm if
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`such information were to be released publicly. The public has no legitimate interest in information
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`that is confidential to Plaintiffs. Id. at *4. No procedure other than filing this information under
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`seal is sufficient to preserve the confidential and sensitive nature of the information.
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` C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
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`There is support for filing portions of Plaintiffs’ Answer to Defendant Philip Morris
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`Products S.A.’s Second Amended Counterclaims under seal, with a publicly filed version
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`containing strictly limited redactions. Plaintiffs’ Answer to Defendant Philip Morris Products
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`4
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`Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 5 of 7 PageID# 11516
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`S.A.’s Second Amended Counterclaims contains material that falls within the scope of the
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`Stipulated Protective Order. (Dkt. 103.) 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 the
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`limited amount of confidential information that is “normally unavailable to the public.” Flexible
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`Benefits Council v. Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov.
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`13, 2008); U.S. ex rel. Carter, 2011 WL 2077799, at *3. As noted, the portions of Plaintiffs’
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`Answer to Defendant Philip Morris Products S.A.’s Second Amended Counterclaims that are
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`redacted concern confidential information of Plaintiffs.
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`IV.
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` CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request that that the Court grant this
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`Motion and enter the proposed Order.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 6 of 7 PageID# 11517
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`Dated: March 26, 2021
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`
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`Stephanie E. Parker
`JONES DAY
`1420 Peachtree Street, N.E.
`Suite 800
`Atlanta, GA 30309
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`
`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
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
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`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`Respectfully submitted,
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` /s/ David M. Maiorana
`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, III Va. Bar No. 23613
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
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`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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`6
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`Case 1:20-cv-00393-LO-TCB Document 524 Filed 03/26/21 Page 7 of 7 PageID# 11518
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 26th 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
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`to all 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 Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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