`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`Civil Action No. 1:20-cv-393-LO-TCB
`
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`
`Plaintiffs and Counterclaim
`Defendants,
`
`v.
`
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`Plaintiffs.
`
`
`MEMORANDUM IN SUPPORT OF COUNTERCLAIM PLAINTIFFS’ MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
`
`Pursuant to Local Civil Rule 5(C), Counterclaim Plaintiffs Altria Client Services, LLC
`
`(“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”)
`
`(collectively, “Counterclaim Plaintiffs”) hereby move the Court for leave to file their Reply in
`
`Support of their Motion to Compel Reynolds’ 30(b)(b) Deposition on Topics 28, 54, and 78, and
`
`exhibits 25, 26, 29, 30, and 32 thereto under seal.
`
`Counterclaim Plaintiffs also move for leave to file a public redacted version of the
`
`Memorandum that omits confidential information. All of the materials Counterclaim Plaintiffs
`
`seek to file under seal are confidential under the stipulated protective order.
`
`I.
`
`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
`
`Counterclaim Plaintiffs seek leave to file the following documents under seal:
`
`• An un-redacted version of Counterclaim Plaintiffs’ Reply in Support of their
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 564 Filed 04/15/21 Page 2 of 6 PageID# 12543
`
`
`
`Motion to Compel Reynolds’ 30(b)(b) Deposition on Topics 28, 54, and 78;
`
`• Exhibit 25, letter from N. Smith to J. Koh, dated April 5, 2021;
`
`• Exhibit 26, Counterclaim-Defendants’ Fourteenth Supplemental Objections and
`
`Responses to Counterclaim-Plaintiffs’ First Set of Interrogatories (No. 4), dated
`
`November 25, 2020;
`
`• Exhibit 29, correspondence between the parties, dated April 12, 2021;
`
`• Exhibit 30, letter from S. Laud to J. Koh, dated March 2, 2021;
`
`• Exhibit 32, Counterclaim-Defendants’ Fourteenth Supplemental Objections and
`
`Responses to Counterclaim-Plaintiffs’ Seventh Set of Interrogatories (No. 28),
`
`dated March 29, 2021;
`
`II.
`
`ARGUMENT
`
`Although there is a general presumption that the public has the right to access documents
`
`in the files of the courts, this presumption may be overcome “if the public’s right of access is
`
`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000)
`
`(citation omitted); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To
`
`determine whether the interests in sealing the records outweigh the public’s right of access, a court
`
`must follow a three-step process: (1) provide public notice of the request to seal and allow
`
`interested parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing
`
`the documents; and (3) articulate specific reasons and factual findings supporting its decision to
`
`seal. Ashcraft, 218 F.3d at 302; Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-DWD,
`
`2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL
`
`135428 (E.D. Va. Jan. 17, 2012). All three requirements are satisfied here.
`
`First, the public has received notice of the request to seal and will have a reasonable
`
`
`
`2
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 564 Filed 04/15/21 Page 3 of 6 PageID# 12544
`
`
`
`opportunity to object. In accordance with Local Civil Rule 5 procedures, this sealing motion was
`
`publicly docketed, satisfying the first requirement. Counterclaim Defendants will have an
`
`opportunity to respond, and once the “public has had ample opportunity to object” to Counterclaim
`
`Plaintiffs’ motion and “the Court has received no objections,” the first Ashcraft requirement may
`
`be deemed satisfied. See GTSI Corp. v. Wildflower Int’l, Inc., No. 09-cv-00123-JCC, 2009 WL
`
`1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel. Carter v. Halliburton Co., No. 10-cv-00864-
`
`JCC-TCB, 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public
`
`notice of the request to seal that allowed interested parties a reasonable opportunity to object—
`
`nearly two weeks.”).
`
`Second, Counterclaim Plaintiffs seek to seal and to redact from the public record only
`
`information that the parties must keep confidential by the stipulated protective order.
`
`Counterclaim Plaintiffs will file publicly a redacted version of their Reply in addition to a sealed
`
`version. Moreover, the exhibits filed under seal contain competitively sensitive information the
`
`disclosure of which would cause harm. This selective and narrow protection of confidential
`
`material constitutes “the least drastic method of shielding the information at issue.” Adams, 2011
`
`WL 7042224, at *4. The public has no legitimate interest in information that is confidential to
`
`Counterclaim Plaintiffs and Counterclaim Defendants. See Adams, 2011 WL 7042224, at *4
`
`(“[T]here is no legitimate public interest in disclosing the proprietary and confidential information
`
`of [the defendant] . . . and disclosure to the public could result in significant damage to the
`
`company.”). The information that Counterclaim Plaintiffs seek to seal and redact includes
`
`confidential, proprietary, and competitively sensitive business information of Counterclaim
`
`Plaintiffs, Counterclaim Defendants, and/or third parties, each of which could face harm if such
`
`information were to be released publicly.
`
`
`
`3
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 564 Filed 04/15/21 Page 4 of 6 PageID# 12545
`
`
`
`Third, there is support for filing portions of Counterclaim Plaintiffs’ Reply under seal, with
`
`a publicly filed version containing strictly limited redactions. As an initial matter, the stipulated
`
`protective order requires that this information remain confidential. And the redacted portions of
`
`the Reply only pertain to this confidential information. Moreover, the exhibits filed under seal
`
`contain competitively sensitive business information. Sealing these materials is therefore proper
`
`because the public’s interest in access is outweighed by a party’s interest in “preserving
`
`confidentiality” of limited amounts of confidential information that is “normally unavailable to the
`
`public.” Flexible Benefits Council v. Feltman, No. 08-cv-00371-JCC, 2008 WL 4924711, at *1;
`
`U.S. ex rel. Carter, 2011 WL 2077799, at *3.
`
`III. CONCLUSION
`
`For the foregoing reasons, Counterclaim Plaintiffs respectfully request that the Court grant
`
`this Motion and enter the attached proposed Order.
`
`
`
`
`
`4
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 564 Filed 04/15/21 Page 5 of 6 PageID# 12546
`
`
`
`Dated: April 15, 2021
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ Lawrence J. Gotts
`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
`
`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 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
`
`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
`
`Counsel for Defendants-Counterclaim Plaintiffs
`Altria Client Services LLC, Philip Morris USA
`Inc., and Philip Morris Products S.A.
`
`
`
`5
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 564 Filed 04/15/21 Page 6 of 6 PageID# 12547
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on this 15th day of April, 2021, a true and correct copy of the foregoing
`
`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
`
`counsel of record:
`
`
`
`
`/s/ Lawrence J. Gotts
`Lawrence J. Gotts (VSB No. 25337)
`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
`
`
`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
`
`
`
`
`
`
`
`
`
`