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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`Case No. 1:20-cv-00393-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 PLAINTIFFS’ MOTION TO SEAL
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`This matter is before the Court on the motion filed by Plaintiffs RAI Strategic Holdings,
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`Inc. and R.J. Reynolds Vapor Company (collectively, “Plaintiffs”) to file under seal Plaintiffs’
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`Plaintiffs’ Opposition to Defendants’ Motion for Leave To Serve Supplemental Expert Reports
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`and accompanying Exhibits A-C, E, H-P, and R-V, pursuant to Federal Rule of Civil Procedure
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`5.2(d) and Local Civil Rule 5(C).
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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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`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
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`of Plaintiffs’ motion to seal and its memorandum in support thereof, the Court hereby FINDS as
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`follows:
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`Case 1:20-cv-00393-LO-TCB Document 589-1 Filed 05/05/21 Page 2 of 5 PageID# 13309
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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. Plaintiffs’ sealing motion was publicly docketed in accordance with Local
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`Civil Rule 5. Defendants have had an opportunity to respond. The “public has had ample
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`opportunity to object” to Plaintiffs’ motion and, because “the Court has received no objections,”
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`the first requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp. v.
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`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
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`(E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that
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`allowed interested parties a reasonable opportunity to object—nearly two weeks.”).
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`2.
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`Plaintiffs seek to seal and redact from the public record only information
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`designated by the parties as confidential. Plaintiffs have filed publicly a redacted version of
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`Plaintiffs’ Opposition to Defendants’ Motion for Leave To Serve Supplemental Expert Reports
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`and accompanying Exhibits A-E, H-P, and R-V, in addition to a sealed version, 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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`confidential to Plaintiffs. The information that Plaintiffs seek to seal includes confidential,
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`proprietary, and competitively sensitive business information of Plaintiffs, Defendants, and/or
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`third parties, each of which could face harm if such information were to be released publicly.
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`Case 1:20-cv-00393-LO-TCB Document 589-1 Filed 05/05/21 Page 3 of 5 PageID# 13310
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`Specifically, the sensitive information that Plaintiffs move for leave to file under seal and to
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`redact from the public version is:
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`• Plaintiffs’ Opposition to Defendants’ Motion for Leave To Serve Supplemental
`Expert Reports;
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`• Exhibit A: excerpts from corrected amended supplemental expert report of Stacy
`Ehrlich
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`• Exhibit B: correspondence between counsel regarding deposition of David
`Clissold and supplemental report of Stacy Ehrlich
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`• Exhibit C: excerpts from amended and supplemental expert report of Paul K.
`Meyer
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`• Exhibit E: technical information regarding the Alto product
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`• Exhibit H: excerpts from Defendant PMP’s second supplemental response to
`Plaintiffs’ second set of interrogatories
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`• Exhibit I: March 12, 2021 letter from J. Michalik to J. Koh
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`• Exhibit J: excerpts from Defendant PMP’s fifth supplemental response to
`Plaintiffs’ second set of interrogatories
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`• Exhibit K: excerpts from March 12, 2021 supplemental report of John Abraham
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`• Exhibit L: correspondence between counsel regarding consent modification of the
`scheduling order
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`• Exhibit M: excerpts from March 31, 2021 supplemental responsive expert report
`of Kelly Kodama
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`• Exhibit N: October 27, 2020 letter from J. Michalik to J. Koh
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`• Exhibit O: November 19, 2020 letter from J. Michalik to J. Koh
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`• Exhibit P: excerpts from Plaintiffs’ eighth supplemental response to Defendants’
`first set or interrogatories
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`• Exhibit R: excerpts from Defendants’ October 10, 2020 30(b)(6) notice to
`Plaintiffs
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`• Exhibit S: excerpts from deposition of Reynolds’ corporate witness
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`Case 1:20-cv-00393-LO-TCB Document 589-1 Filed 05/05/21 Page 4 of 5 PageID# 13311
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`• Exhibit T: excerpts from RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor
`Company’s Initial Disclosures
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`• Exhibit U: excerpts from report of Ryan Sullivan
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`• Exhibit V: excerpts from the deposition of Defendants’ corporate witness
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`That information includes confidential financial information, design documents,
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`communications, and discovery responses.
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`3.
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`There is support for filing Plaintiffs’ Opposition to Defendants’ Motion for Leave
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`To Serve Supplemental Expert Reports and accompanying Exhibits A-C, E, H-P, and R-V under
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`seal. Plaintiffs’ Opposition to Defendants’ Motion for Leave To Serve Supplemental Expert
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`Reports and accompanying Exhibits A-C, E, H-P, and R-V contain material that falls within the
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`scope of the stipulated protective order. Placing these materials under seal is proper because the
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`public’s interest in access is outweighed by a party’s interest in “preserving confidentiality” of
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`the limited amount of confidential information that is “normally unavailable to the public.”
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`Flexible Benefits Council v. Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D.
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`Va. Nov. 13, 2008); U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`Case 1:20-cv-00393-LO-TCB Document 589-1 Filed 05/05/21 Page 5 of 5 PageID# 13312
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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 Plaintiffs are granted leave to file
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`REDACTED versions of Plaintiffs’ Opposition to Defendants’ Motion for Leave To Serve
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`Supplemental Expert Reports and accompanying Exhibits A-C, E, H-P, and R-V.
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`And to file UNDER SEAL un-redacted versions of Plaintiffs’ Opposition to Defendants’
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`Motion for Leave To Serve Supplemental Expert Reports and accompanying Exhibits A-C, E, H-
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`P, and R-V.
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`And FURTHER ORDERED that the un-redacted versions of Plaintiffs’ Opposition to
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`Defendants’ Motion for Leave To Serve Supplemental Expert Reports and accompanying
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`Exhibits A-C, E, H-P, and R-V 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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`THERESA CARROLL BUCHANAN
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`UNITED STATES MAGISTRATE JUDGE
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