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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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`COUNTERCLAIM PLAINTIFFS’ MEMORANDUM IN RESPONSE TO, AND IN
`SUPPORT OF, COUNTERCLAIM DEFENDANTS’ MOTIONS TO SEAL THEIR
`OPPOSITION TO COUNTERCLAIM PLAINTIFFS’ MOTION TO COMPEL
`REYNOLDS’S 30(b)(6) DEPOSITIONS AND ACCOMPANYING EXHIBITS
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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”) submit this memorandum in response to, and in support
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`of, Counterclaim Defendants RAI Strategic Holdings, Inc.’s and R.J. Reynolds Vapor Company’s
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`(collectively, “Counterclaim Defendants”) Motions to Seal their Opposition to Counterclaim
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`Plaintiffs’ Motion to Compel Reynolds’s 30(b)(6) Depositions and accompanying exhibits. (Dkts.
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`551, 554, 556, 559.) The proposed sealed material includes confidential, proprietary, and
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`competitively sensitive business
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`information of Counterclaim Plaintiffs, Counterclaim
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`Defendants, and/or third parties that falls within the scope of the Stipulated Protective Order. (Dkt.
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`103.) These confidential materials should remain under seal.
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`Case 1:20-cv-00393-LO-TCB Document 571 Filed 04/21/21 Page 2 of 6 PageID# 12569
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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) [] 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.”
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`The materials that Counterclaim Defendants move for leave to seal include highly
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`confidential and proprietary business and technological information of the Counterclaim Plaintiffs
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`and should be kept 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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`Counterclaim Defendants seek leave to file under seal an un-redacted version of their
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`Opposition to Counterclaim Plaintiffs’ Motion to Compel Reynolds’s 30(b)(6) Depositions and
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`accompanying Exhibits 1–9 and 11–21. Specifically, the sensitive information that Counterclaim
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`Defendants move for leave to file under seal, and to redact from a publicly filed version, includes
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`proprietary and confidential business information from Counterclaim Defendants, Counterclaim
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`Plaintiffs, and/or third parties, such as confidential financial and technical information,
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`communications, and discovery responses.
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`III. 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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`Case 1:20-cv-00393-LO-TCB Document 571 Filed 04/21/21 Page 3 of 6 PageID# 12570
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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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`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. Counterclaim Defendants’ sealing motions were publicly docketed a week
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`ago on April 14, 2021, in accordance with Local Civil Rule 5, and Counterclaim Plaintiffs now
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`file this memorandum in support of sealing. Since the “public has had ample opportunity to object”
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`to Counterclaim Defendants’ motion and “the Court has received no objections,” the first
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`requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp. v. Wildflower Int’l,
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`Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel Carter
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`v. 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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`Second, Counterclaim Defendants 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 Defendants have filed publicly a redacted version of their Opposition to
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`Counterclaim Plaintiffs’ Motion to Compel Reynolds’s 30(b)(6) Depositions (Dkt. 555), in
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`addition to a sealed version, and have redacted only those limited portions it seeks to seal. This
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`selective and narrow protection of confidential material constitutes the least drastic method of
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`shielding the information at issue. Adams, 2011 WL 7042224, at *4 (The “proposal to redact only
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`the proprietary and confidential information, rather than seal the entirety of his declaration,
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`Case 1:20-cv-00393-LO-TCB Document 571 Filed 04/21/21 Page 4 of 6 PageID# 12571
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`constitutes the least drastic method of shielding the information at issue”). The public has no
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`legitimate interest in information that is confidential to Counterclaim Defendants, Counterclaim
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`Plaintiffs, and/or third parties. Id. at *4. The information that Counterclaim Defendants seek to
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`seal includes confidential, proprietary, and competitively sensitive business information of
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`Counterclaim Plaintiffs, who could face harm if such information were to be released publicly. No
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`procedure other than filing this information under seal is sufficient to preserve the confidential and
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`sensitive nature of the information.
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`Third, there is support for filing portions of Counterclaim Defendants’ Opposition to
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`Counterclaim Plaintiffs’ Motion to Compel Reynolds’s 30(b)(6) Depositions and accompanying
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`Exhibits 1–9 and 11–21 under seal, with a publicly filed version containing strictly limited
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`redactions. Placing these materials under seal is proper because the public’s interest in access is
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`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 v.
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`Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel.
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`Carter, 2011 WL 2077799, at *3. As noted, the portions of Counterclaim Defendants’ Opposition
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`to Counterclaim Plaintiffs’ Motion to Compel Reynolds’s 30(b)(6) Depositions that are redacted
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`concern confidential information of Counterclaim Plaintiffs and/or third parties. The same is true
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`for accompanying Exhibits 1–9 and 11–21.
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`IV. CONCLUSION
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`For the foregoing reasons, Counterclaim Plaintiffs respectfully request that Counterclaim
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`Defendants’ Motions to Seal be granted and that such sealing be maintained until further Order of
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`this Court.
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`Case 1:20-cv-00393-LO-TCB Document 571 Filed 04/21/21 Page 5 of 6 PageID# 12572
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`Dated: April 21, 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
`
`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
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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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`Case 1:20-cv-00393-LO-TCB Document 571 Filed 04/21/21 Page 6 of 6 PageID# 12573
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 21st 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)
`max.grant@lw.com
`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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