Case 1:20-cv-00393-LO-TCB Document 630 Filed 05/19/21 Page 1 of 5 PageID# 14243
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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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`Civil Action No. 1:20-cv-393-LO-TCB
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`MEMORANDUM IN SUPPORT OF COUNTERCLAIM PLAINTIFF PHILIP MORRIS
`PRODUCTS S.A.’S MOTION FOR LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Counterclaim Plaintiff Philip Morris Products S.A.
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`(“PMP”) hereby moves the Court for leave to file PMP’s Opposition to Counterclaim Defendant’s
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`(“Reynolds”) Motion to Compel Rule 30(b)(6) Witnesses Relating to Injunctive Relief and Exhibit
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`1 thereto under seal.
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`PMP also moves for leave to file publicly a redacted version of the Opposition that omits
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`confidential information. All of the materials PMP seeks to file under seal are confidential under
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`the stipulated protective order.
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`PMP seeks leave to file the following documents under seal:
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` An un-redacted version of PMP’s Opposition;
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` Exhibit 1, an email from Jennifer Koh to counsel for Reynolds, dated May 14, 2021.
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`Case 1:20-cv-00393-LO-TCB Document 630 Filed 05/19/21 Page 2 of 5 PageID# 14244
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`II.
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`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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`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. In accordance with Local Civil Rule 5 procedures, this sealing motion was
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`publicly docketed, satisfying the first requirement. Reynolds will have an opportunity to respond,
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`and once the “public has had ample opportunity to object” to PMP’s motion and “the Court has
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`received no objections,” the first Ashcraft requirement may be deemed satisfied. See GTSI Corp.
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`v. Wildflower Int’l, Inc., No. 09-cv-00123-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. 10-cv-00864-JCC-TCB, 2011 WL 2077799, at *3 (E.D.
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`Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that allowed
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`interested parties a reasonable opportunity to object—nearly two weeks.”).
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`Second, PMP seeks to seal and to redact from the public record only information that the
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`parties must keep confidential by the stipulated protective order. PMP will file publicly a redacted
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`version of its Memorandum in addition to a sealed version. Moreover, the exhibits filed under seal
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`2
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`Case 1:20-cv-00393-LO-TCB Document 630 Filed 05/19/21 Page 3 of 5 PageID# 14245
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`contain competitively sensitive information the disclosure of which would cause harm. 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 public has no legitimate
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`interest in information that is confidential to PMP and Reynolds. See Adams, 2011 WL 7042224,
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`at *4 (“[T]here is no legitimate public interest in disclosing the proprietary and confidential
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`information of [the defendant] . . . and disclosure to the public could result in significant damage
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`to the company.”). The information that PMP seeks to seal and redact includes confidential,
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`proprietary, and competitively sensitive business information of PMP, Reynolds, and/or third
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`parties, each of which could face harm if such information were to be released publicly.
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`Third, there is support for filing portions of PMP’s Memorandum under seal, with a
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`publicly filed version containing strictly limited redactions. As an initial matter, the stipulated
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`protective order requires that this information remain confidential. And the redacted portions of
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`the Opposition only pertain to this confidential information. Moreover, the exhibit filed under seal
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`contains competitively sensitive business information. Sealing these materials is therefore 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 limited amounts of confidential information that is “normally unavailable to the
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`public.” Flexible Benefits Council v. Feltman, No. 08-cv-00371-JCC, 2008 WL 4924711, at *1;
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`U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`III. CONCLUSION
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`For the foregoing reasons, PMP respectfully requests that the Court grant this Motion and
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`enter the attached proposed Order.
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`3
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`Case 1:20-cv-00393-LO-TCB Document 630 Filed 05/19/21 Page 4 of 5 PageID# 14246
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`Dated: May 19, 2020
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`Respectfully submitted,
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`/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
`Jamie Underwood
`jamie.underwood@lw.com (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (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 K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (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 Defendant and Counterclaim
`Plaintiff Philip Morris Products S.A.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 630 Filed 05/19/21 Page 5 of 5 PageID# 14247
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 19th day of May, 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
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`Maximilian A. Grant (VSB No. 91792)
`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 Defendant and Counterclaim
`Plaintiff Philip Morris Products S.A.
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`5
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