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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-LO-TCB
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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 COUNTERCLAIM PLAINTIFFS’ MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Counterclaim Plaintiffs Altria Client Services, LLC
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`(“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”)
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`(collectively, “Counterclaim Plaintiffs”) hereby move the Court for leave to Their Motion to
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`Compel Reynolds’ 30(b)(b) Deposition on Topics 28, 54, and 78, and exhibits 1-23 thereto under
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`seal.
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`Counterclaim Plaintiffs also move for leave to file a public redacted version of the
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`Memorandum that omits confidential information. All of the materials Counterclaim Plaintiffs
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`seek to file under seal are confidential under the stipulated protective order.
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Counterclaim Plaintiffs seek leave to file the following documents under seal:
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`• An un-redacted version of Counterclaim Plaintiffs’ Memorandum in Support of
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`Case 1:20-cv-00393-LO-TCB Document 548 Filed 04/09/21 Page 2 of 7 PageID# 11968
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`Their Motion to Compel Reynolds’ 30(b)(b) Deposition on Topics 28, 54, and 78;
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`• Exhibit 1, excerpts from the deposition transcript of Nicholas Gilley, taken on
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`December 3, 2020;
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`• Exhibit 2, excerpts from the Expert Report of Ryan Sullivan, Ph.D., dated March
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`24, 2021;
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`• Exhibit 3, excerpts of Counterclaim Plaintiffs’ 30(b)(6) Notice of Deposition of
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`Reynolds, dated October 20, 2020;
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`• Exhibit 4, excerpts of Counterclaim Plaintiffs’ 30(b)(6) Notice of Deposition of
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`Reynolds, dated November 23, 2020;
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`• Exhibit 5, December 8, 2020 email from D. McNeely;
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`• Exhibit 6, correspondence between J. Koh and N. Smith, dated February 26, 2021;
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`• Exhibit 7, March 30, 2021 Email from J. Koh;
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`• Exhibit 8, excerpts from the Opening Expert Report of Paul K. Meyer, dated
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`February 24, 2021;
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`• Exhibit 9, April 1, 2021 email from J. Koh;
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`• Exhibit 10, April 7, 2021 email from N. Smith;
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`• Exhibit 11, April 7, 2021 email from J. Koh;
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`• Exhibit 12, April 6, 2021 email from T. Vitt;
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`• Exhibit 13, excerpts from the Responsive Expert Report of Kelly R. Kodama
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`Regarding U.S. Patent No. 10,555,556, dated March 24, 2021;
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`• Exhibit 14, April 8, 2021 email from N. Smith;
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`• Exhibit 15, production document RJREDVA_000948368;
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`• Exhibit 16, production document RJREDVA_001271556;
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`2
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`Case 1:20-cv-00393-LO-TCB Document 548 Filed 04/09/21 Page 3 of 7 PageID# 11969
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`• Exhibit 17, production document RJREDVA_001271567;
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`• Exhibit 18, production document RJREDVA_001271814;
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`• Exhibit 19, excerpts from the Opening Expert Report of Joseph C. McAlexander,
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`dated February 24, 2021;
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`• Exhibit 20, excerpts from the Rebuttal Expert Report of Dr. Travis Blalock, dated
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`March 24, 2021;
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`• Exhibit 21, excerpts from the Rebuttal Expert Report of Joseph C. McAlexander,
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`dated March 24, 2021;
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`• Exhibit 22, excerpts from Reynolds’ First Supplemental Responses
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`to
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`Counterclaim Plaintiffs’ Third Set of Requests for Admission (Nos. 108-111),
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`dated March 29, 2021; and
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`• Exhibit 23, excerpts from Reynolds’ Responses to Counterclaim Plaintiffs’ Fifth
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`Set of Requests for Admission (Nos. 264-287), dated April 2, 2021.
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`II.
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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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`3
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`Case 1:20-cv-00393-LO-TCB Document 548 Filed 04/09/21 Page 4 of 7 PageID# 11970
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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. Counterclaim Defendants will have an
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`opportunity to respond, and once the “public has had ample opportunity to object” to Counterclaim
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`Plaintiffs’ motion and “the Court has received no objections,” the first Ashcraft requirement may
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`be deemed satisfied. See GTSI Corp. v. Wildflower Int’l, Inc., No. 09-cv-00123-JCC, 2009 WL
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`1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel. Carter v. Halliburton Co., No. 10-cv-00864-
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`JCC-TCB, 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public
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`notice of the request to seal that allowed interested parties a reasonable opportunity to object—
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`nearly two weeks.”).
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`Second, Counterclaim Plaintiffs seek to seal and to redact from the public record only
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`information that the parties must keep confidential by the stipulated protective order.
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`Counterclaim Plaintiffs will file publicly a redacted version of its Memorandum in addition to a
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`sealed version. Moreover, the exhibits filed under seal contain competitively sensitive information
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`the disclosure of which would cause harm. This selective and narrow protection of confidential
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`material constitutes “the least drastic method of shielding the information at issue.” Adams, 2011
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`WL 7042224, at *4. The public has no legitimate interest in information that is confidential to
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`Counterclaim Plaintiffs and Counterclaim Defendants. See Adams, 2011 WL 7042224, at *4
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`(“[T]here is no legitimate public interest in disclosing the proprietary and confidential information
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`of [the defendant] . . . and disclosure to the public could result in significant damage to the
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`company.”). The information that Counterclaim Plaintiffs seek to seal and redact includes
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`4
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`Case 1:20-cv-00393-LO-TCB Document 548 Filed 04/09/21 Page 5 of 7 PageID# 11971
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`confidential, proprietary, and competitively sensitive business information of Counterclaim
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`Plaintiffs, Counterclaim Defendants, and/or third parties, each of which could face harm if such
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`information were to be released publicly.
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`Third, there is support for filing portions of Counterclaim Plaintiffs’ Memorandum under
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`seal, with a publicly filed version containing strictly limited redactions. As an initial matter, the
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`stipulated protective order requires that this information remain confidential. And the redacted
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`portions of the Memorandum only pertain to this confidential information. Moreover, the exhibits
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`filed under seal contain competitively sensitive business information. Sealing these materials is
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`therefore proper because the public’s interest in access is outweighed by a party’s interest in
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`“preserving confidentiality” of limited amounts of confidential information that is “normally
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`unavailable to the public.” Flexible Benefits Council v. Feltman, No. 08-cv-00371-JCC, 2008 WL
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`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, Counterclaim Plaintiffs respectfully request that the Court grant
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`this Motion and enter the attached proposed Order.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 548 Filed 04/09/21 Page 6 of 7 PageID# 11972
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`Dated: April 9, 2021
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`Respectfully submitted,
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`By: /s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`(max.grant@lw.com)
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (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 J. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
`Facsimile: (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
`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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`6
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`Case 1:20-cv-00393-LO-TCB Document 548 Filed 04/09/21 Page 7 of 7 PageID# 11973
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 9th day of April, 2021, 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/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`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-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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`7
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