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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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`Civil Action No. 1:20-cv-393-LO-TCB
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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’ MOTION TO SEAL
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`This matter is before the Court on the motion 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 for Leave to Supplement
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`Expert Reports (“Opposition”) and accompanying Exhibits A–C, E, H–P, and R–V under seal
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`pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Civil Rule 5(C). (Dkts. 589, 592.)
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`Because the documents that Counterclaim Defendants seek to seal contain confidential,
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`proprietary, and competitively sensitive business information of Counterclaim Plaintiffs Altria
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`Client Services LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products
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`S.A. (“PMP”) (collectively, “PMP/Altria”) and/or third parties, PMP/Altria filed a memorandum
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`in 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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`Case 1:20-cv-00393-LO-TCB Document 605-1 Filed 05/12/21 Page 2 of 4 PageID# 13763
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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. PMP/Altria has filed a memorandum in support of sealing.
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`The “public has had ample opportunity to object” to Counterclaim Defendants’ motion and, since
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`“the Court has received no objections,” the first requirement under Ashcraft, 218 F.3d at 302, has
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`been satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at
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`*9 (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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`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 for Leave to Supplement
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`Expert Reports (Dkt. 593), in addition to a sealed version, and have redacted only those limited
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`portions it seeks to seal. This selective and narrow protection of confidential material constitutes
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`the least drastic method of shielding the information at issue. Adams v. Object Innovation, Inc.,
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`No. 3:11-cv-272-REP-DWS, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011) (The “proposal to
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`Case 1:20-cv-00393-LO-TCB Document 605-1 Filed 05/12/21 Page 3 of 4 PageID# 13764
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`redact only the proprietary and confidential information, rather than seal the entirety of his
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`declaration, constitutes the least drastic method of shielding the information at issue”). The public
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`has no legitimate interest in information that is confidential to PMP/Altria and Counterclaim
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`Defendants. Id. at *4. The information that Counterclaim Defendants seek to seal includes
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`confidential, proprietary, and competitively sensitive business information of PMP/Altria 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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`Specifically, the sensitive information that Counterclaim Defendants move for leave to file under
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`seal, and to redact from a publicly filed version, includes materials from PMP/Altria and/or third
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`parties, such as confidential business information falling 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 for Leave to Supplement Expert Reports and accompanying
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`Exhibits A–C, E, H–P, and R–V under seal, with a publicly filed version of the Opposition
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`containing strictly limited redactions. Counterclaim Defendants’ Opposition to Counterclaim
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`Plaintiffs’ Motion for Leave to Supplement Expert Reports and accompanying Exhibits A–C, E,
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`H–P, and R–V contain material that falls within the scope of the stipulated protective order.
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`Placing these materials under seal is proper because the public’s interest in access is outweighed
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`by a party’s interest in “preserving confidentiality” of the limited amount of confidential
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`information that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman,
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`No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel. Carter,
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`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 for
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`Case 1:20-cv-00393-LO-TCB Document 605-1 Filed 05/12/21 Page 4 of 4 PageID# 13765
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`Leave to Supplement Expert Reports.
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`And to file UNDER SEAL an un-redacted version of their Opposition to Counterclaim
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`Plaintiffs’ Motion for Leave to Supplement Expert Reports and accompanying Exhibits A–C, E,
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`H–P, and R–V.
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`And FURTHER ORDERED that the un-redacted version of Counterclaim Defendants’
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`Opposition to Counterclaim Plaintiffs’ Motion for Leave to Supplement Expert Reports and
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`accompanying Exhibits A–C, E, H–P, and R–V shall remain SEALED until further order of the
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`Court.
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`ENTERED this ____ day of __________, 2021.
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`Alexandria, Virginia
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