Case 1:20-cv-00393-LO-TCB Document 704 Filed 06/09/21 Page 1 of 6 PageID# 17132
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`Civil Action No. 1:20-cv-393-LO-TCB
`
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`
`Plaintiffs and Counterclaim
`Defendants,
`
`v.
`
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`Plaintiffs.
`
`
`PMP/ALTRIA’S MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF,
`COUNTERCLAIM DEFENDANTS’ MOTION TO SEAL
`
`Pursuant to Local Civil Rule 5(C), Counterclaim Plaintiffs Altria Client Services LLC
`
`(“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”)
`
`(collectively, “PMP/Altria”) submit this memorandum in response to, and in support of,
`
`Counterclaim Defendants RAI Strategic Holdings, Inc.’s and R.J. Reynolds Vapor Company’s
`
`(collectively, “Counterclaim Defendants”) Motion to Seal their Brief in Support of Plaintiffs’
`
`Partial Motion for Summary Judgment and accompanying Exhibits B-C, E-H, K-Q, and S. (Dkt.
`
`684.) The proposed sealed material includes confidential, proprietary, and competitively sensitive
`
`business information of PMP/Altria, Counterclaim Defendants, and/or third parties that falls within
`
`the scope of the Stipulated Protective Order. (Dkt. 103.) These confidential materials should
`
`remain under seal.
`
`1
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 704 Filed 06/09/21 Page 2 of 6 PageID# 17133
`
`I.
`
`LEGAL STANDARD
`
`Local Civil Rule 5 requires that, when a party moves to file material under seal that another
`
`party has designated as confidential, “the party designating the material as confidential must file a
`
`response to the motion complying with requirements (2), (3), and (4) [] along with a proposed
`
`order” that “shall recite the findings required by governing case law to support the proposed
`
`sealing.”
`
`The materials that Counterclaim Defendants move for leave to seal include highly
`
`confidential and proprietary business and technological information of PMP/Altria and should be
`
`kept under seal permanently for the reasons described below.
`
`II.
`
`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
`
`Counterclaim Defendants seek leave to file under seal an un-redacted version of their Brief
`
`in Support of Plaintiffs’ Partial Motion for Summary Judgment and accompanying Exhibits B-C,
`
`E-H, K-Q, and S. Specifically, the sensitive information that Counterclaim Defendants move for
`
`leave to file under seal, and to redact from a publicly filed version, includes proprietary and
`
`confidential business information from Counterclaim Defendants, PMP/Altria, and/or third parties,
`
`such as confidential financial and technical information, communications, and discovery
`
`responses.
`
`III. ARGUMENT
`
`Although there is a general presumption that the public has the right to access documents
`
`in the files of the courts, this presumption may be overcome “if the public’s right of access is
`
`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000)
`
`(citation omitted); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To
`
`determine whether the interests in sealing the records outweigh the public’s right of access, a court
`
`must follow a three-step process: (1) provide public notice of the request to seal and allow
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 704 Filed 06/09/21 Page 3 of 6 PageID# 17134
`
`interested parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing
`
`the documents; and (3) articulate specific reasons and factual findings supporting its decision to
`
`seal. Ashcraft, 218 F.3d at 302; Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-DWD,
`
`2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL
`
`135428 (E.D. Va. Jan. 17, 2012). All three requirements are satisfied here.
`
`First, the public has received notice of the request to seal and will have a reasonable
`
`opportunity to object. Counterclaim Defendants’ sealing motions were publicly docketed a week
`
`ago on June 2, 2021, in accordance with Local Civil Rule 5, and PMP/Altria now files this
`
`memorandum in support of sealing. Since the “public has had ample opportunity to object” to
`
`Counterclaim Defendants’ motion and “the Court has received no objections,” the first requirement
`
`under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09-
`
`cv-123-JCC, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel Carter v. Halliburton
`
`Co., No. 1:10-cv-864-JCC/TCB, 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties
`
`provided public notice of the request to seal that allowed interested parties a reasonable
`
`opportunity to object—nearly two weeks.”).
`
`Second, Counterclaim Defendants seek to seal and to redact from the public record only
`
`information that the parties must keep confidential by the stipulated protective order.
`
`Counterclaim Defendants have filed publicly a redacted version of their Brief in Support of
`
`Plaintiffs’ Partial Motion for Summary Judgment (Dkt. 690), in addition to a sealed version, and
`
`have redacted only those limited portions it seeks to seal. This selective and narrow protection of
`
`confidential material constitutes the least drastic method of shielding the information at issue.
`
`Adams, 2011 WL 7042224, at *4 (The “proposal to redact only the proprietary and confidential
`
`information, rather than seal the entirety of his declaration, constitutes the least drastic method of
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 704 Filed 06/09/21 Page 4 of 6 PageID# 17135
`
`shielding the information at issue”). The public has no legitimate interest in information that is
`
`confidential to Counterclaim Defendants, PMP/Altria, and/or third parties. Id. at *4. The
`
`information that Counterclaim Defendants seek to seal includes confidential, proprietary, and
`
`competitively sensitive business information of PMP/Atria, Counterclaim Defendants, and/or third
`
`parties who could face harm if such information were to be released publicly. No procedure other
`
`than filing this information under seal is sufficient to preserve the confidential and sensitive nature
`
`of the information.
`
`Third, there is support for filing portions of Counterclaim Defendants’ Brief in Support of
`
`Plaintiffs’ Partial Motion for Summary Judgment and accompanying Exhibits B-C, E-H, K-Q, and
`
`S under seal, with a publicly filed version of the same containing strictly limited redactions.
`
`Placing these materials under seal is proper because the public’s interest in access is outweighed
`
`by a party’s interest in “preserving confidentiality” of the limited amount of confidential
`
`information that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman,
`
`No. 1:08-cv-00371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel. Carter,
`
`2011 WL 2077799, at *3. As noted, the portions of Counterclaim Defendants’ Brief in Support of
`
`Plaintiffs’ Partial Motion for Summary Judgment that are redacted concern confidential
`
`information of PMP/Altria, Counterclaim Defendants, and/or third parties. The same is true for
`
`accompanying Exhibits B-C, E-H, K-Q, and S.
`
`IV. CONCLUSION
`
`For the foregoing reasons, PMP/Altria respectfully requests that Counterclaim Defendants’
`
`Motion to Seal be granted and that such sealing be maintained until further Order of this Court.
`
`
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 704 Filed 06/09/21 Page 5 of 6 PageID# 17136
`
`Dated: June 9, 2021
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`By: /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 (pro hac vice)
`jamie.underwood@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`
`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
`
`Gregory J. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
`
`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
`
`Counsel for Defendants-Counterclaim Plaintiffs
`Altria Client Services LLC, Philip Morris USA
`Inc., and Philip Morris Products S.A.
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 704 Filed 06/09/21 Page 6 of 6 PageID# 17137
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on this 9th day of June, 2021, a true and correct copy of the foregoing
`
`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
`
`counsel of record:
`
`
`
`
`
`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`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
`
`
`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
`
`
`
`
`
`
`
`1
`
`