Case 1:20-cv-00393-LO-TCB Document 703 Filed 06/08/21 Page 1 of 7 PageID# 17121
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`v.
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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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`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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`PLAINTIFFS’ MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF, DEFENDANTS’
`MOTION TO SEAL DEFENDANTS PMP/ALTRIA’S MEMORANDUM IN SUPPORT OF
`THEIR MOTION FOR SUMMARY JUDGMENT AND ACCOMPANYING EXHIBITS 5-11, 18,
`AND 21
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`Case 1:20-cv-00393-LO-TCB Document 703 Filed 06/08/21 Page 2 of 7 PageID# 17122
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`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Rule 5(C) of the Local
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`Civil Rules, Plaintiffs RAI Strategic Holdings, Inc., and R.J. Reynolds Vapor Company
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`(collectively, “Plaintiffs”) respectfully submit this memorandum in response to, and in support of,
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`Defendant Philip Morris Products S.A.’s (“PMP”) and Altria Client Services, LLC (“Altria”) (or
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`collectively “PMP/Altria” or “Defendants”) Motion
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`to Seal Defendants PMP/Altria’s
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`Memorandum in Support of Their Motion for Summary Judgment and accompanying Exhibits 5-
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`11, 18, and 21 (Dkt 691). The proposed sealed material includes Plaintiffs’ confidential,
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`proprietary, and competitively sensitive business, financial, and design information and falls
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`within the scope of the Stipulated Protective Order. (Dkt. 103.) These confidential materials should
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`remain under seal.
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`I.
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`LEGAL STANDARD
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`Local Civil Rule 5 requires that, when a party moves to file material under seal that another
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`party has designated as confidential, “the party designating the material as confidential must file a
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`response to the motion complying with requirements (2), (3), and (4) above along with a proposed
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`order” that “shall recite the findings required by governing case law to support the proposed
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`sealing.” Loc. R. Civ. P. 5. These requirements are: “(2) A statement why sealing is necessary, and
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`why another procedure will not suffice, as well as appropriate evidentiary support for the sealing
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`request; (3) References to the governing case law, an analysis of the appropriate standard to be
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`applied for that specific filing, and a description of how that standard has been satisfied; [and]
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`(4) Unless permanent sealing is sought, a statement as to the period of time the party seeks to have
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`the matter maintained under seal and how the matter is to be handled upon unsealing.” Id.
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`“[T]he right [of the public] to inspect and copy judicial records is not absolute.” Nixon v.
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`Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Access to court records has been denied where
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`“court files might have become a vehicle for improper purposes.” Id. In particular, a corporation’s
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`Case 1:20-cv-00393-LO-TCB Document 703 Filed 06/08/21 Page 3 of 7 PageID# 17123
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`“strong interest in preserving the confidentiality of its proprietary and trade-secret information …
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`may justify partial sealing of court records.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir.
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`2014). As set forth in the Fourth Circuit’s decision in Ashcraft v. Conoco, Inc., a court has the
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`authority to seal court documents “if the public’s right of access is outweighed by competing
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`interests.” 218 F.3d 282, 288 (4th Cir. 2000). Before granting a motion to seal, a court must
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`consider the following: “(1) provide public notice of the request to seal and allow interested parties
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`a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents,
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`and (3) provide specific reasons and factual findings supporting its decision to seal the documents
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`and for rejecting the alternatives.” Id.; Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-
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`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted,
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`2012 WL 135428 (E.D. Va. Jan. 17, 2012). All three requirements are met here.
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`The materials that Defendants move for leave to seal include highly confidential and
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`proprietary business and technological information of the Plaintiffs and should be kept under seal
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`permanently for the reasons described below.
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`II.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Defendants seek leave to file under seal an un-redacted version of Defendants PMP/Altria’s
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`Memorandum in Support of Their Motion for Summary Judgment and accompanying Exhibits 5-
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`11, 18, and 21 (Dkt. 691). Specifically, the sensitive information that Defendants move for leave
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`to file under seal, and to redact from a publicly filed version, includes confidential, proprietary,
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`and commercially sensitive business, financial, and design information of Defendants, Plaintiffs,
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`and/or third parties:
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`• PMP/Altria’s Memorandum in Support of Their Motion for Summary Judgment;
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`Case 1:20-cv-00393-LO-TCB Document 703 Filed 06/08/21 Page 4 of 7 PageID# 17124
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`• Exhibits 5-11, 18, and 21: Includes proprietary and commercially sensitive
`business, financial, and design information Defendants, Plaintiffs, and/or third
`parties.
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`III. ARGUMENT
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`A. THE PUBLIC HAS HAD AMPLE NOTICE.
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`The public has received notice of the request to seal and has had reasonable opportunity to
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`object. Defendants’ sealing motion was publicly docketed in accordance with Local Civil Rule 5,
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`and Plaintiffs now file this memorandum in support of sealing. The “public has had ample
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`opportunity to object” to Defendants’ motion and, since “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. Wildflower
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`Int’l, Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel
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`Carter v. Halliburton Co., No. 1:10-cv-864-JCC/TCB, 2011 WL 2077799, at *3 (E.D. Va. May
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`24, 2011) (“[T]he parties provided public notice of the request to seal that allowed interested
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`parties a reasonable opportunity to object—nearly two weeks.”).
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`B. DEFENDANTS HAVE SOUGHT THE LEAST DRASTIC MEASURES.
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`Defendants seek to seal and redact from the public record only information that the parties
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`must keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) Defendants have
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`filed publicly a redacted version of their Memorandum in Support of Their Motion for Summary
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`Judgment and accompanying Exhibits 5-11, 18, and 21 (Dkt. 696), and have redacted only those
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`limited portions it seeks to seal. This selective and narrow protection of confidential material
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`constitutes the least drastic method of shielding the information at issue. Adams, 2011 WL
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`7042224, at *4 (The “proposal to redact only the proprietary and confidential information, rather
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`than seal the entirety of his declaration, constitutes the least drastic method of shielding the
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`information at issue.”). The public has no legitimate interest in information that is confidential to
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`Defendants and Plaintiffs. Id. at *4. The information that Defendants seek to seal includes
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`confidential, proprietary, and competitively sensitive business information of Defendants,
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`Plaintiffs, and/or third parties, each of which could face harm if such information were to be
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`released publicly. No procedure other than filing this information under seal is sufficient to
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`preserve the confidential and sensitive nature of the information.
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` C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
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`There is support for filing portions of Defendants PMP/Altria’s Memorandum in Support
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`of Their Motion for Summary Judgment and accompanying Exhibits 5-11, 18, and 21 with a
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`publicly filed version containing strictly
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`limited redactions. Defendants PMP/Altria’s
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`Memorandum in Support of Their Motion for Summary Judgment and accompanying Exhibits 5-
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`11, 18, and 21 contain material that falls within the scope of the Stipulated Protective Order. (Dkt.
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`103.) Placing these materials under seal is proper because the public’s interest in access is
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`outweighed by a party’s interest in “preserving confidentiality” of the limited amount of
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`confidential information that is “normally unavailable to the public.” Flexible Benefits Council v.
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`Feltman, No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel.
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`Carter, 2011 WL 2077799, at *3. As noted, the portions of Defendants PMP/Altria’s
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`Memorandum in Support of Their Motion for Summary Judgment and accompanying Exhibits 5-
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`11, 18, and 21 that are redacted concern confidential information of Defendants, Plaintiffs, and/or
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`third parties.
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`IV.
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` CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request that Defendants Motion to Seal
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`(Dkt. 691) be granted and that such sealing be maintained until further Order of this Court.
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`Case 1:20-cv-00393-LO-TCB Document 703 Filed 06/08/21 Page 6 of 7 PageID# 17126
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`Dated: June 8, 2021
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`
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`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
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`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
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`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
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`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`Respectfully submitted,
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` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
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`Charles B. Molster, III Va. Bar No. 23613
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
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`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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`Case 1:20-cv-00393-LO-TCB Document 703 Filed 06/08/21 Page 7 of 7 PageID# 17127
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 8th day of June, 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/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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