Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 1 of 8 PageID# 11977
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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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`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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`Case No. 1:20-cv-00393-LO-TCB
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`PLAINTIFFS’ MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF, DEFENDANTS’
`MOTION TO SEAL DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION
`TO COMPEL REYNOLDS’ 30(B)(6) DEPOSITION ON TOPICS 28, 54, AND 78, AND
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`EXHIBITS 1-23
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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 2 of 8 PageID# 11978
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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 response to, and in support of,
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`Defendants Altria Client Services, LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip
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`Morris Products S.A.’s (“PMP”) (collectively, “Defendants”) Motion to Seal Defendants’
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`Memorandum in Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition and
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`accompanying exhibits 1-23. (Dkt. 545.) The proposed sealed material includes Plaintiffs’
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`confidential, proprietary, and competitively sensitive business information and 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 a
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`response to the motion complying with requirements (2), (3), and (4) above 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.” Loc. R. Civ. P. 5. These requirements are: “(2) A statement why sealing is necessary,
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`and why another procedure will not suffice, as well as appropriate evidentiary support for the
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`sealing request; (3) References to the governing case law, an analysis of the appropriate standard
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`to be applied for that specific filing, and a description of how that standard has been satisfied;
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`[and] (4) Unless permanent sealing is sought, a statement as to the period of time the party seeks
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`to have the matter maintained under seal and how the matter is to be handled upon unsealing.” Id.
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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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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 3 of 8 PageID# 11979
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`“strong interest in preserving the confidentiality of its proprietary and trade-secret information …
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`may justify partial sealing of court records.” Doe v. Public 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. Conoco, 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 Defendants move for leave to seal include highly confidential and
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`proprietary business information of the Plaintiffs, Defendants, and third parties and should be kept
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`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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`Defendants seek leave to file under seal an un-redacted version of Defendants’
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`Memorandum in Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition and
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`accompanying exhibits 1-23. (Dkt. 545.) Specifically, the sensitive information that Defendants
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`move for leave to file under seal, and to redact from a publicly filed version, includes proprietary
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`and commercially sensitive business information of Defendants, Plaintiffs, and/or third parties, as
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`well as confidential discussions among counsel:
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`• An un-redacted version of Defendants’ Memorandum in Support of Their Motion
`to Compel Reynolds’ 30(b)(b) Deposition on Topics 28, 54, and 78;
`• Excerpts from the deposition transcript of Nicholas Gilley, taken on December 3,
`2020, labeled Exhibit 1;
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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 4 of 8 PageID# 11980
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`• Excerpts from the Expert Report of Ryan Sullivan, dated March 24, 2021, labeled
`Exhibit 2;
`• Excerpts of Defendants’ 30(b)(6) Notice of Deposition of Reynolds, dated October
`20, 2020, labeled Exhibit 3;
`• Excerpts of Defendants’ 30(b)(6) Notice of Deposition of Reynolds, dated
`November 23, 2020, labeled Exhibit 4;
`• December 8, 2020, email from D. McNeely, labeled Exhibit 5
`• Correspondence between J. Koh and N. Smith, dated February 26, 2021, labeled
`Exhibit 6;
`• March 30, 2021 Email from J. Koh, labeled Exhibit 7;
`• Excerpts from the Opening Expert Report of Paul K. Meyer, dated February 24,
`2021, labeled Exhibit 8;
`• April 1, 2021, email from J. Koh, labeled Exhibit 9;
`• April 7, 2021, email from N. Smith, labeled Exhibit 10;
`• April 7, 2021, email from J. Koh, labeled Exhibit 11;
`• April 6, 2021, email from T. Vitt, labeled Exhibit 12;
`• Excerpts from the Responsive Expert Report of Kelly R. Kodama Regarding U.S.
`Patent No. 10,555,556, dated March 24, 2021, labeled Exhibit 13;
`• April 8, 2021, email from N. Smith, labeled Exhibit 14;
`• Production document RJREDVA_000948368, labeled Exhibit 15;
`• Production document RJREDVA_001271556, labeled Exhibit 16;
`• Production document RJREDVA_001271567, labeled Exhibit 17;
`• Production document RJREDVA_001271814, labeled Exhibit 18;
`• Excerpts from the Opening Expert Report of Joseph C. McAlexander, dated
`February 24, 2021, labeled Exhibit 19;
`• Excerpts from the Rebuttal Expert Report of Travis Blalock, dated March 24, 2021,
`labeled Exhibit 20;
`• Excerpts from the Rebuttal Expert Report of Joseph C. McAlexande, dated March
`24, 2021, labeled Exhibit 21;
`• Excerpts from Reynolds’ First Supplemental Responses to Defendants’ Third Set
`of Requests for Admission (Nos. 108-111), dated March 29, 2021, labeled Exhibit
`22; and
`• Excerpts from Reynolds’ Responses to Defendants’ Fifth Set of Requests for
`Admission (Nos. 264-287), dated April 2, 2021, labeled Exhibit 23.
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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 5 of 8 PageID# 11981
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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. Defendants’ sealing motion was publicly docketed on April 9, 2021, in accordance with
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`Local Civil Rule 5, and Plaintiffs now file this memorandum in support of sealing. The “public
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`has had ample opportunity to object” to Defendants’ motion and, since “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, 2009);
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`U.S. ex rel Carter v. Halliburton Co., No. 1:10-cv-864-JCC/TCB, 2011 WL 2077799, at *3 (E.D.
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`Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that allowed
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`interested parties a reasonable opportunity to object—nearly two weeks.”).
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`B. DEFENDANTS HAVE SOUGHT THE LEAST DRASTIC MEASURES.
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`Defendants 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.) Defendants’
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`Memorandum in Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition and
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`accompanying exhibits 1-23, (Dkt. 543), in addition to a sealed version (Dkt. 547), and have
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`redacted only those limited portions they seek to seal. This selective and narrow protection of
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`confidential material constitutes the least drastic method of shielding the information at issue.
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`Adams, 2011 WL 7042224, at *4 (The “proposal to redact only the proprietary and confidential
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`information, rather than seal the entirety of his declaration, constitutes the least drastic method of
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`shielding the information at issue.”). The public has no legitimate interest in information that is
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`confidential to Defendants and Plaintiffs. Id. at *4. The information that Defendants seek to seal
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`includes confidential, proprietary, and competitively sensitive business information of Defendants,
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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 6 of 8 PageID# 11982
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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. No procedure other than filing this information under seal is sufficient to
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`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 Defendants’ Memorandum in Support of Their
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`Motion to Compel Reynolds’ 30(b)(6) Deposition and accompanying exhibits 1-23, with a publicly
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`filed version containing strictly limited redactions. Defendants’ Memorandum in Support of Their
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`Motion to Compel Reynolds’ 30(b)(6) Deposition and accompanying exhibits 1-23 contain
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`material that falls within the scope of the Stipulated Protective Order. (Dkt. 103.) Placing these
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`materials under seal is proper because the public’s interest in access is outweighed by a party’s
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`interest in “preserving confidentiality” of the limited amount of confidential information that is
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`“normally unavailable to the public.” Flexible Benefits Council v. Feltman, No. 1:08-cv-00371-
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`JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel. Carter, 2011 WL 2077799,
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`at *3. As noted, the portions of Defendants’ Memorandum in Support of Their Motion to Compel
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`Reynolds’ 30(b)(6) Deposition and accompanying exhibits 1-23, that are redacted concern
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`confidential information of Defendants, Plaintiffs, and/or third parties.
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`IV.
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` CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request that Defendants’ 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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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 7 of 8 PageID# 11983
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`Dated: April 14, 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
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`
`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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`Case 1:20-cv-00393-LO-TCB Document 550 Filed 04/14/21 Page 8 of 8 PageID# 11984
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this April 14, 2021, a true and correct copy of the foregoing was
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`served using the Court’s CM/ECF system, with electronic notification of such filing to all counsel
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`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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