Case 1:20-cv-00393-LO-TCB Document 550-1 Filed 04/14/21 Page 1 of 5 PageID# 11985
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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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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`Case No. 1:20-cv-00393-LO-TCB
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`[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO SEAL
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`This matter is before the Court on the motion filed by Defendants Altria Client Services,
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`LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”)
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`(collectively, “Defendants”) to seal an un-redacted version of Defendants’ Memorandum in
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`Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition and accompanying exhibits
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`1-23, pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Civil Rule 5(C). Because the
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`documents that Defendants seek to seal contain confidential, proprietary, and competitively
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`sensitive business information of the Plaintiffs RAI Strategic Holdings, Inc., and R.J. Reynolds
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`Vapor Company (collectively, “Plaintiffs”), Plaintiffs filed a memorandum in support of
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`Defendants’ sealing request.
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`Before this Court may seal documents, it must: “(1) provide public notice of the request
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`to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic
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`alternatives to sealing the documents, and (3) provide specific reasons and factual findings
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`supporting its decision to seal the documents and for rejecting the alternatives.” Ashcraft v.
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`Case 1:20-cv-00393-LO-TCB Document 550-1 Filed 04/14/21 Page 2 of 5 PageID# 11986
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`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
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`of Defendants’ motion to seal and its memorandum in support thereof, the Court hereby FINDS
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`as follows:
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`1.
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`The public has received notice of the request to seal and has had reasonable
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`opportunity to object. Defendants’ sealing motion was publicly docketed on April 9, 2021, in
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`accordance with Local Civil Rule 5. Plaintiffs have filed a memorandum in support of sealing.
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`The “public has had ample opportunity to object” to Defendants’ motion and, since “the Court
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`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,
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`2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the
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`request to seal that allowed interested parties a reasonable opportunity to object—nearly two
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`weeks.”).
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`2.
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`Defendants seek to seal and redact from the public record only information
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`designated by the parties as confidential. Defendants have filed publicly a redacted version of
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`Defendants’ Memorandum in Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition
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`and 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 v. Object Innovation, Inc., No. 3:11-cv-272-REP-DWD, 2011 WL 7042224, at *4 (E.D.
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`Va. Dec. 5, 2011) (The “proposal to redact only the proprietary and confidential information,
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`rather than seal the entirety of his declaration, constitutes the least drastic method of shielding
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`the information at issue.”). The public has no legitimate interest in information that is
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`Case 1:20-cv-00393-LO-TCB Document 550-1 Filed 04/14/21 Page 3 of 5 PageID# 11987
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`confidential to Plaintiffs. Id. at *4 (“[T]here is no legitimate public interest in disclosing the
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`proprietary and confidential information of [the defendant] … and disclosure to the public could
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`result in significant damage to the company.”). The information that Defendants seek to seal
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`includes confidential, proprietary, and competitively sensitive business information of Plaintiffs
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`and/or third parties, each of which could face harm if such information were to be released
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`publicly. Specifically, the sensitive information that Defendants move for leave to file under
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`seal, and to redact from a publicly filed version, includes:
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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;
`• 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;
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`• 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’s 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’s Responses to Defendants’ Fifth Set of Requests for
`Admission (Nos. 264-287), dated April 2, 2021, labeled Exhibit 23.
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`3.
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`There is support for filing portions of Defendants’ Memorandum in Support of
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`Their Motion to Compel Reynolds’ 30(b)(6) Deposition and accompanying exhibits 1-23 under
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`seal, with a publicly filed version containing strictly limited redactions. 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 contain material that falls within the scope of the stipulated
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`protective order. Placing these materials under seal is proper because the public’s interest in
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`access is outweighed by a party’s interest in “preserving confidentiality” of the limited amount of
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`confidential information that is “normally unavailable to the public.” Flexible Benefits Council
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`v. Feltman, No. 1:08-cv-371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex
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`rel. Carter, 2011 WL 2077799, at *3.
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`Case 1:20-cv-00393-LO-TCB Document 550-1 Filed 04/14/21 Page 5 of 5 PageID# 11989
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`Therefore, based on the findings above, for good cause shown, it is hereby
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`ORDERED that the motion is GRANTED, and Defendants are granted leave to file a
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`REDACTED version of Defendants’ Memorandum in Support of Their Motion to Compel
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`Reynolds’ 30(b)(6) Deposition and accompanying exhibits 1-23.
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`And to file UNDER SEAL an un-redacted version of Defendants’ Memorandum in
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`Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition and accompanying exhibits
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`1-23.
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`And FURTHER ORDERED that the un-redacted version of Defendants’ Memorandum
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`in Support of Their Motion to Compel Reynolds’ 30(b)(6) Deposition and accompanying
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`exhibits 1-23, shall remain SEALED until further order of the Court.
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`ENTERED this _____ day of _________________, 2021.
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`Alexandria, Virginia
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`__________________________________________
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