`
`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.
`
`
`[PROPOSED] ORDER GRANTING COUNTERCLAIM
`DEFENDANTS’ MOTION TO SEAL
`
`This matter is before the Court on the motions filed by Counterclaim Defendants RAI
`
`Strategic Holdings, Inc., and R.J. Reynolds Vapor Company (collectively, “Counterclaim
`
`Defendants”) to file their Reply in Support of Counterclaim Defendants’ Partial Motion for
`
`Summary Judgment (“Reply”) and accompanying Exhibits T and U under seal pursuant to Federal
`
`Rule of Civil Procedure 5.2(d) and Local Civil Rule 5(C). (Dkts. 746, 749). Because the
`
`documents that Counterclaim Defendants seek to seal contain confidential, proprietary, and
`
`competitively sensitive business information of Counterclaim Defendants, Counterclaim Plaintiffs
`
`Altria Client Services LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris
`
`Products S.A. (“PMP”) (collectively, “PMP/Altria”) and/or third parties, PMP/Altria filed a
`
`memorandum in support of Counterclaim Defendants’ sealing request.
`
`Before this Court may seal documents, it must: “(1) provide public notice of the request to
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 759-1 Filed 06/29/21 Page 2 of 4 PageID# 20539
`
`
`
`seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic
`
`alternatives to sealing the documents, and (3) provide specific reasons and factual findings
`
`supporting its decision to seal the documents and for rejecting the alternatives.” Ashcraft v.
`
`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
`
`of Counterclaim Defendants’ motion to seal and their memorandum in support thereof, the Court
`
`hereby FINDS as follows:
`
`1.
`
`The public has received notice of the request to seal and has had reasonable
`
`opportunity to object. Counterclaim Defendants’ sealing motion was publicly docketed in
`
`accordance with Local Civil Rule 5. PMP/Altria has filed a memorandum in support of sealing.
`
`The “public has had ample opportunity to object” to Counterclaim Defendants’ motion and, since
`
`“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.”).
`
`2.
`
`Counterclaim Defendants seek to seal and redact from the public record only
`
`information designated by the parties as confidential. Counterclaim Defendants have filed publicly
`
`a redacted version of their Reply, (Dkt. 750), 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 v. Object
`
`Innovation, Inc., No. 3:11-cv-272-REP-DWS, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011)
`
`(The “proposal to redact only the proprietary and confidential information, rather than seal the
`
`2
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 759-1 Filed 06/29/21 Page 3 of 4 PageID# 20540
`
`
`
`entirety of his declaration, constitutes the least drastic method of shielding the information at
`
`issue”). The public has no legitimate interest in information that is confidential to PMP/Altria,
`
`Counterclaim Defendants, and third parties. Id. at *4. The information that Counterclaim
`
`Defendants seek to seal includes confidential, proprietary, and competitively sensitive business
`
`information of PMP/Altria and/or third parties, each of which could face harm if such information
`
`were to be released publicly. Specifically, the sensitive information that Counterclaim Defendants
`
`move for leave to file under seal, and to redact from a publicly filed version, includes materials
`
`from PMP/Altria and/or third parties, such as confidential business and technical information
`
`falling under the protective order.
`
`3.
`
`There is support for filing portions of Counterclaim Defendants’ Reply and
`
`accompanying Exhibits T and U under seal, with a publicly filed version of the same containing
`
`strictly limited redactions. Counterclaim Defendants’ Reply and accompanying Exhibits T and U
`
`contain material that falls within the scope of the stipulated protective order. 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.
`
`Therefore, based on the findings above, for good cause shown, it is hereby
`
`ORDERED that the motion is GRANTED, and Counterclaim Defendants are granted
`
`leave to file a REDACTED version of their Reply.
`
`And to file UNDER SEAL an un-redacted version of their Reply and accompanying
`
`Exhibits T and U.
`
`3
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 759-1 Filed 06/29/21 Page 4 of 4 PageID# 20541
`
`
`
`And FURTHER ORDERED that the un-redacted version of Counterclaim Defendants’
`
`Reply and accompanying Exhibits T and U shall remain SEALED until further order of the Court.
`
`
`
`
`
`ENTERED this ____ day of __________, 2021.
`
`Alexandria, Virginia
`
`
`
`
`
`
`
`
`
`
`
`___________________________________
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`