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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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`[PROPOSED] ORDER GRANTING COUNTERCLAIM
`DEFENDANTS’ MOTION 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 Memorandum in Support of Counterclaim Defendants’ Motion to
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`Compel Philip Morris Products S.A. to Designate Rule 30(b)(6) Witnesses Relating to Philip
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`Morris Products S.A.’s Claim for a Permanent Injunction (“Memorandum in Support of Motion to
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`Compel”) and accompanying exhibits under seal pursuant to Federal Rule of Civil Procedure
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`5.2(d) and Local Civil Rule 5(C). (Dkts. 608, 611). Because the documents that Counterclaim
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`Defendants seek to seal contain confidential, proprietary, and competitively sensitive business
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`information of Counterclaim Plaintiffs Altria Client Services LLC (“ACS”), Philip Morris USA
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`Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”) (collectively, “PMP/Altria”) and/or
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`third parties, PMP/Altria filed a memorandum in support of Counterclaim Defendants’ sealing
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`Case 1:20-cv-00393-LO-TCB Document 656-1 Filed 05/21/21 Page 2 of 4 PageID# 14917
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`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’ motion 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 Memorandum in Support of Motion to Compel, (Dkt. 614), in addition
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`to a sealed version, and have redacted only those limited portions it seeks to seal. This selective
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`and narrow protection of confidential material constitutes the least drastic method of shielding the
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`2
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`Case 1:20-cv-00393-LO-TCB Document 656-1 Filed 05/21/21 Page 3 of 4 PageID# 14918
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`information at issue. Adams v. Object Innovation, Inc., No. 3:11-cv-272-REP-DWS, 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 drastic
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`method of shielding the information at issue”). The public has no legitimate interest in information
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`that is confidential to PMP/Altria and Counterclaim Defendants. Id. at *4. The information that
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`Counterclaim Defendants seek to seal includes confidential, proprietary, and competitively
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`sensitive business information of PMP/Altria and/or third parties, each of which could face harm
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`if such information were to be released publicly. Specifically, the sensitive information that
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`Counterclaim Defendants move for leave to file under seal, and to redact from a publicly filed
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`version, includes materials from PMP/Altria and/or third parties, such as confidential business
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`information falling under the protective order.
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`3.
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`There is support for filing portions of Counterclaim Defendants’ Memorandum in
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`Support of Motion to Compel and accompanying Exhibits 3–14 under seal, with a publicly filed
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`version of the Opposition containing strictly limited redactions. Counterclaim Defendants’
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`Memorandum in Support of Motion to Compel and accompanying Exhibits 3–14 contain material
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`that falls within the scope of the stipulated protective order. Placing these materials under seal is
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`proper 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 Memorandum in Support of Motion to Seal.
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`3
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`Case 1:20-cv-00393-LO-TCB Document 656-1 Filed 05/21/21 Page 4 of 4 PageID# 14919
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`And to file UNDER SEAL an un-redacted version of their Memorandum in Support of
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`Motion to Compel and accompanying Exhibits 3–14.
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`And FURTHER ORDERED that the un-redacted version of Counterclaim Defendants’
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`Memorandum in Support of Motion to Compel and accompanying Exhibits 3–14 shall remain
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`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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`4
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