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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 for Leave to Serve Supplemental Expert Reports, and accompanying
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`exhibits 2-21, pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Civil Rule 5(C).
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`Because the documents that Defendants seek to seal contain confidential, proprietary, and
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`competitively sensitive business information of the Plaintiffs RAI Strategic Holdings, Inc., and
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`R.J. Reynolds Vapor Company (collectively, “Plaintiffs”), Plaintiffs filed a memorandum in
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`support of 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 599-1 Filed 05/07/21 Page 2 of 5 PageID# 13731
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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 30, 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 for Leave to Serve Supplemental Expert
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`Reports and accompanying exhibits 2-21 (Dkt. 580), in addition to a sealed version (Dkt. 584),
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`and have redacted only those limited portions they seek to seal. This selective and narrow
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`protection of confidential material constitutes the least drastic method of shielding the
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`information at issue. Adams v. Object Innovation, Inc., No. 3:11-cv-272-REP-DWD, 2011 WL
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`7042224, at *4 (E.D. Va. Dec. 5, 2011) (The “proposal to redact only the proprietary and
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`confidential information, rather than seal the entirety of his declaration, constitutes the least
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`drastic method of shielding the information at issue.”). The public has no legitimate interest in
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`Case 1:20-cv-00393-LO-TCB Document 599-1 Filed 05/07/21 Page 3 of 5 PageID# 13732
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`information that is confidential to Plaintiffs. Id. at *4 (“[T]here is no legitimate public interest in
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`disclosing the proprietary and confidential information of [the defendant] … and disclosure to
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`the public could result in significant damage to the company.”). The information that
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`Defendants seek to seal includes confidential, proprietary, and competitively sensitive business
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`information of Plaintiffs, Defendants, and/or third parties, each of which could face harm if such
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`information were to be released publicly. Specifically, the sensitive information that Defendants
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`move for leave to file under seal, and to redact from a publicly filed version, includes:
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`for ALTO, Bates No.
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`• An un-redacted version of Defendants’ Memorandum in Support of Their Motion
`for Leave to Serve Supplemental Expert Reports;
`• Email correspondence between J. Koh and J. Michalik, dated November 5, 2020,
`labeled Exhibit 2;
`• A document supporting regulatory submission for Vuse ALTO, Bates No.
`RJREDVA_001449123, labeled Exhibit 3;
`Product Application
`• Premarket Tobacco
`RJREDVA_001450878, labeled Exhibit 4;
`• Excerpts from deposition of Eric Hunt, dated November 20, 2020, labeled Exhibit
`5
`• Email correspondence from J. Michalik to J. Koh, dated February 19, 2021, labeled
`Exhibit 6;
`• Reynolds’s third supplemental response to interrogatory number 16, dated February
`19, 2021, labeled Exhibit 7;
`• Reynolds’s fourth supplemental response to interrogatory number 1, dated March
`5, 2021, labeled Exhibit 8;
`• Expert Report of Kelly Kodama, dated March 31, 2021, labeled Exhibit 9;
`• Excerpts from deposition of Eric Hunt, dated April 14, 2021, labeled Exhibit 10;
`• Expert Report of Paul Meyer, dated February 24, 2021, labeled Exhibit 11;
`• Expert Report of John Abraham, dated February 24, 2021, labeled Exhibit 12;
`• Letter from D. McNeely to J. Michalik, dated April 26, 2021, labeled Exhibit 13;
`• Email correspondence from J. Michalik to D. McNeely, dated April 30, 2021,
`labeled Exhibit 14;
`• Supplemental Expert Report of Paul Meyer, dated April 26, 2021, labeled Exhibit
`15;
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`Case 1:20-cv-00393-LO-TCB Document 599-1 Filed 05/07/21 Page 4 of 5 PageID# 13733
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`• Excerpts from deposition of Scott Peddycord, dated April 16, 2021, labeled Exhibit
`16;
`• Reynolds’s initial disclosures, dated September 9, 2021, labeled Exhibit 17;
`• Reynolds’s third supplemental response to interrogatory 4, dated March 24, 2021,
`labeled Exhibit 18;
`• Rebuttal Report of Ryan Sullivan, dated March 24, 2021, labeled Exhibit 19;
`• Supplemental Expert Report of John Abraham, dated April 26, 2021, labeled
`Exhibit 20; and
`• Email correspondence from L. Smith, dated April 26, 2021, labeled Exhibit 21.
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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 for Leave to Serve Supplemental Expert Reports and accompanying exhibits 2-21
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`under seal, with a publicly filed version containing strictly limited redactions. Defendants’
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`Defendants’ Memorandum in Support of their Motion for Leave to Serve Supplemental Expert
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`Reports and accompanying exhibits 2-21 contain material that falls within the scope of the
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`stipulated protective order. Placing these materials under seal is proper because the public’s
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`interest in access is outweighed by a party’s interest in “preserving confidentiality” of the limited
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`amount of confidential information that is “normally unavailable to the public.” Flexible
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`Benefits Council v. Feltman, No. 1:08-cv-371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13,
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`2008); U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`Case 1:20-cv-00393-LO-TCB Document 599-1 Filed 05/07/21 Page 5 of 5 PageID# 13734
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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 for Leave to
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`Serve Supplemental Expert Reports and accompanying exhibits 2-21.
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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 for Leave to Serve Supplemental Expert Reports and accompanying
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`exhibits 2-21.
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`And FURTHER ORDERED that the un-redacted version of Defendants’ Memorandum
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`in Support of their Motion for Leave to Serve Supplemental Expert Reports and accompanying
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`exhibits 2-21, 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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