Case 1:20-cv-00393-LO-TCB Document 771 Filed 07/02/21 Page 1 of 6 PageID# 20727
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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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`Case No. 1:20-cv-00393-LO-TCB
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`COUNTERCLAIM PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION
`FOR SCHEDULING ORDER SETTING IN LIMINE/DAUBERT MOTION DATES
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`Case 1:20-cv-00393-LO-TCB Document 771 Filed 07/02/21 Page 2 of 6 PageID# 20728
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`I.
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`INTRODUCTION
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`Counterclaim Plaintiffs Altria Client Services, LLC, Philip Morris USA Inc., and Philip
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`Morris Products S.A. (collectively, “PMP/Altria”) request that the Court adopt their proposed
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`schedule for motions in limine and Daubert motions to occur in August-September 2021.
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`This case has been pending for 15 months, and is trial ready. The parties have now
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`completed discovery1 and filed their pretrial disclosures, including exhibit and witness lists. The
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`Court held a Final Pretrial Conference in May, and set trial for April 4, 2022 (which was delayed
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`due to a backlog created by the COVID-19 pandemic). Dkt. 657. But the Court also indicated at
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`the Final Pretrial Conference that, if the Court’s schedule opened up before April 2022 (i.e., a
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`continuance in its criminal docket), the case could proceed to trial sooner—and potentially as early
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`as Fall 2021.
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`To ensure the case is ready to proceed consistent with the Court’s direction, including at
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`an earlier date if one becomes available, the parties need to complete briefing on motions in limine
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`and Daubert motions by early Fall 2021. PMP/Altria proposed a briefing schedule to Reynolds
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`that would accomplish this. Reynolds, on the other hand, counter-proposed a schedule providing
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`for completion of briefing in February 2022 that ignores the Court’s statement regarding a
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`potentially earlier trial date. PMP/Altria raise this issue in the instant motion so that the Court may
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`determine its preferred schedule for finalizing these remaining pre-trial motions, the last issues
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`remaining to enable the case to be tried, so that the parties can plan accordingly.
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`II.
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`ARGUMENT
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`The only remaining dates to be scheduled in advance of trial in this case are dates for
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`motions in limine and Daubert motions, which should be heard “at least 14 days before trial.” Dkt.
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`1 Subject to a handful of minor open follow-up items.
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`1
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`97 at 24, 26. Given that the case is otherwise trial-ready, PMP/Altria proposed to Reynolds that
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`the parties set the schedule for motions in limine and Daubert motions to occur in August-
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`September 2021, as set forth below. Ex. 1 (6/22/21 J. Koh email).
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`Deadline
`Event
`August 6 at 6 PM
`Exchange Motion in Limine topics
`Meet and confer on Motion in Limine topics August 10 by 6 PM
`Opening Motions in Limine and Daubert
`August 20
`Motions
`Oppositions to Motions in Limine and
`Daubert Motions
`Replies to Motions in Limine and Daubert
`Motions
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`September 3
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`September 10
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`Reynolds rejected PMP/Altria’s proposed schedule, and refused to consider anything close
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`to it. Instead, Reynolds proposed that the parties wait seven months to begin briefing motions in
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`limine and Daubert motions—in January 2022. Ex. 2 (6/25/21 J. Michalik email). Reynolds
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`contends that there are “a number of issues” that may be resolved between now and the currently
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`scheduled April 2022 trial that may “impact” the issues for motions in limine or Daubert motions,
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`pointing to the pending summary judgment motions, the ongoing ITC proceedings on Reynolds’
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`patents, and Reynolds’ pending inter partes review (IPR) petitions (in which an institution decision
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`is expected September-November 2021).
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`None of Reynolds’ excuses for still further delay of this case warrant deferring in limine or
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`Daubert motion briefing (or rulings).2 This Court routinely conducts such pre-trial briefing while
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`summary judgment motions are under advisement. The ongoing ITC proceedings are relevant, if
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`at all, solely to injunctive remedy that will be taken up post-verdict and thus have no bearing on in
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`2 The Court will recall that Reynolds’ attempts to avoid the completion of depositions and fact
`discovery were the subject of three separate motions. Dkts. 615, 649, 711. In rejecting the last of
`those three motions, the Court stated that “[t]ime is of the essence” and that “further delay” was
`not warranted. Dkt. 743.
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`2
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`limine and Daubert motions. And any institution decisions in the pending IPRs are irrelevant to
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`the in limine and Daubert motions; the petitions themselves are absent from Reynolds’ exhibit list
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`and are not the subject of any expert reports/testimony.
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`There is no reason to drag out completion of the pretrial record pertaining to Reynolds’
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`infringement of PMP/Altria’s five asserted patents.
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`III. CONCLUSION
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`PMP/Altria respectfully request that the Court enter a schedule that requires motions in
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`limine and Daubert motion briefing to proceed in August-September 2021 in order to permit trial
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`in Fall 2021 should such earlier trial date become available.
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`Dated: July 2, 2021
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` Respectfully submitted,
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`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
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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 J. Sobolski (pro hac vice)
`greg.sobolski@lw.com
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`3
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`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
`Facsimile: (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 Defendants-Counterclaim Plaintiffs
`Altria Client Services LLC, Philip Morris USA
`Inc., and Philip Morris Products S.A.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 771 Filed 07/02/21 Page 6 of 6 PageID# 20732
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 2nd day of July, 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
`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 Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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