Case 1:20-cv-00393-LO-TCB Document 572-1 Filed 04/21/21 Page 1 of 6 PageID# 12586
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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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`[PROPOSED] ORDER GRANTING COUNTERCLAIM DEFENDANTS’
`MOTIONS TO SEAL
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`This matter is before the Court on the motions filed by Counterclaim Defendants RAI
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`Strategic Holdings, Inc., and R.J. Reynolds Vapor Company (collectively, “Counterclaim
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`Defendants”) to file their Opposition to Counterclaim Plaintiffs’ Motion to Compel Reynolds’s
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`30(b)(6) Depositions and accompanying exhibits under seal pursuant to Federal Rule of Civil
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`Procedure 5.2(d) and Local Civil Rule 5(C). (Dkts. 551, 554, 556, 559.) Because the documents
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`that Counterclaim Defendants seek to seal contain confidential, proprietary, and competitively
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`sensitive business information of Counterclaim Plaintiffs Altria Client Services LLC (“ACS”),
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`Philip Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”) (collectively,
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`“Counterclaim Plaintiffs”) and/or third parties, Counterclaim Plaintiffs filed a memorandum in
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`support of Counterclaim Defendants’ sealing request.
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`Before this Court may seal documents, it must: “(1) provide public notice of the request to
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`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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`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
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`of Counterclaim Defendants’ motions to seal and their memorandum in support thereof, the Court
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`hereby FINDS 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. Counterclaim Defendants’ sealing motion was publicly docketed in
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`accordance with Local Civil Rule 5. Counterclaim Plaintiffs have filed a memorandum in support
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`of sealing. The “public has had ample opportunity to object” to Counterclaim Defendants’ motion
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`and, since “the Court has received no objections,” the first requirement under Ashcraft, 218 F.3d
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`at 302, has been satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09-cv-123-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. 1:10-cv-864-
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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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`2.
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`Counterclaim Defendants seek to seal and redact from the public record only
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`information designated by the parties as confidential. Counterclaim Defendants have filed publicly
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`a redacted version of their Opposition to Counterclaim Plaintiffs’ Motion to Compel Reynolds’s
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`30(b)(6) Depositions (Dkt. 555), in addition to a sealed version, and have redacted only those
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`limited portions it seeks to seal. This selective and narrow protection of confidential material
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`constitutes the least drastic method of shielding the information at issue. Adams v. Object
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`Innovation, Inc., No. 3:11-cv-272-REP-DWS, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011)
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`(The “proposal to redact only the proprietary and confidential information, rather than seal the
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`entirety of his declaration, constitutes the least drastic method of shielding the information at
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`issue”). The public has no legitimate interest in information that is confidential to Counterclaim
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`Plaintiffs and Counterclaim Defendants. Id. at *4. The information that Counterclaim Defendants
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`seek to seal includes confidential, proprietary, and competitively sensitive business information of
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`Counterclaim Plaintiffs and/or third parties, each of which could face harm if such information
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`were to be released publicly. Specifically, the sensitive information that Counterclaim Defendants
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`move for leave to file under seal, and to redact from a publicly filed version, includes materials
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`from Counterclaim Plaintiffs and/or third parties, such as confidential business information falling
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`under the protective order.
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`3.
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`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. Counterclaim Defendants’ Opposition to Counterclaim Plaintiffs’ Motion to Compel
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`Reynolds’s 30(b)(6) Depositions and accompanying Exhibits 1–9 and 11–21 contain material that
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`falls within the scope of the stipulated protective order. Placing these materials under seal is proper
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`because the public’s interest in access is outweighed by a party’s interest in “preserving
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`confidentiality” of the limited amount of confidential information that is “normally unavailable to
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`the public.” Flexible Benefits Council v. Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at
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`*1 (E.D. Va. Nov. 13, 2008); U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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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 Counterclaim Defendants are granted
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`leave to file a REDACTED version of their Opposition to Counterclaim Plaintiffs’ Motion to
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`Compel Reynolds’s 30(b)(6) Depositions.
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`And to file UNDER SEAL an un-redacted version of their Opposition to Counterclaim
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`Plaintiffs’ Motion to Compel Reynolds’s 30(b)(6) Depositions and accompanying Exhibits 1–9
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`and 11–21.
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`And FURTHER ORDERED that the un-redacted version of Counterclaim Defendants’
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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 shall remain SEALED until further order of the Court.
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`ENTERED this ____ day of __________, 2020.
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`Alexandria, Virginia
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`___________________________________
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`Case 1:20-cv-00393-LO-TCB Document 572-1 Filed 04/21/21 Page 5 of 6 PageID# 12590
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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
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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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`Case 1:20-cv-00393-LO-TCB Document 572-1 Filed 04/21/21 Page 6 of 6 PageID# 12591
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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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