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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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`[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO SEAL
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`This matter is before the Court on the motion filed by Defendant Philip Morris Products
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`S.A. (“PMP”), Philip Morris USA Inc. (“PM USA”), and Altria Client Services, LLC (“Altria”)
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`(or collectively “PMP/Altria” or “Defendants”) to seal an un-redacted version of Exhibits 2 and
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`3 to PMP/Altria’s Opposition to Reynolds’s Motion to Dismiss Inequitable Conduct
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`Counterclaim and Affirmative Defenses and Memorandum in Support of their Cross-Motion for
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`Attorneys’ Fees and Costs pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Civil
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`Rule 5(C). Because the documents that Defendants seek to seal contain confidential, proprietary,
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`and competitively sensitive business, financial, and design information of the Plaintiffs RAI
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`Strategic Holdings, Inc., and R.J. Reynolds Vapor Company (collectively, “Plaintiffs”), Plaintiffs
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`filed a memorandum in support of Defendants’ sealing request.
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`Before this Court may seal documents, it must: “(1) provide public notice of the request
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`to 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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`Case 1:20-cv-00393-LO-TCB Document 778-1 Filed 07/07/21 Page 2 of 4 PageID# 20981
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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 Defendants’ motion to seal and its memorandum in support thereof, the Court hereby FINDS
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`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. Defendants’ sealing motion was publicly docketed in accordance with
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`Local Civil Rule 5. Plaintiffs have filed a memorandum in support of sealing. The “public has
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`had ample opportunity to object” to Defendants’ motion and, since “the Court has received no
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`objections,” the first requirement under Ashcraft, 218 F.3d at 302, has been satisfied. GTSI Corp.
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`v. Wildflower Int’l, Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9 (E.D. Va. Apr. 30,
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`2009); U.S. ex rel Carter v. Halliburton Co., No. 1:10-cv-864-JCC/TCB, 2011 WL 2077799, at
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`*3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to seal that
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`allowed interested parties a reasonable opportunity to object—nearly two weeks.”).
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`2.
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`Defendants seek to seal and redact from the public record only information
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`designated by the parties as confidential. Defendants have filed publicly a redacted version of
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`Exhibits 2 and 3 to PMP/Altria’s Opposition to Reynolds’s Motion to Dismiss Inequitable
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`Conduct Counterclaim and Affirmative Defenses and Memorandum in Support of their Cross-
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`Motion for Attorneys’ Fees and Costs (Dkt. 763), in addition to a sealed version (Dkt. 766), and
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`has redacted only those limited portions they seek to seal. This selective and narrow protection of
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`confidential material constitutes the least drastic method of shielding the information at issue.
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`Adams v. Object Innovation, Inc., No. 3:11-cv-272-REP-DWD, 2011 WL 7042224, at *4 (E.D.
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`Va. Dec. 5, 2011) (The “proposal to redact only the proprietary and confidential information,
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`rather than seal the entirety of his declaration, constitutes the least drastic method of shielding
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`Case 1:20-cv-00393-LO-TCB Document 778-1 Filed 07/07/21 Page 3 of 4 PageID# 20982
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`the information at issue.”). The public has no legitimate interest in information that is
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`confidential to Defendants and Plaintiffs. Id. at *4 (“[T]here is no legitimate public interest in
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`disclosing the proprietary and confidential information of [the defendant] … and disclosure to
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`the public could result in significant damage to the company.”). The information that Defendants
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`seek to seal includes confidential, proprietary, and competitively sensitive business information
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`of Defendants, Plaintiffs, and/or third parties, each of which could face harm if such information
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`were to be released publicly. Specifically, the sensitive information that Defendants move for
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`leave to file under seal, and to redact from a publicly filed version, includes proprietary and
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`commercially sensitive business, financial, and design information of Defendants, Plaintiffs,
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`and/or third parties:
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`• Exhibit 2, Reynolds’s Responses to PMP/Altria’s Third Set of Interrogatories;
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`• Exhibit 3, Reynolds’s Supplemental Response to PMP/Altria’s Interrogatory No.
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`21.
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`3.
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`There is support for filing portions of Exhibits 2 and 3 to PMP/Altria’s
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`Opposition to Reynolds’s Motion to Dismiss Inequitable Conduct Counterclaim and Affirmative
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`Defenses and Memorandum in Support of their Cross-Motion for Attorneys’ Fees and Costs
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`under seal, with a publicly filed version containing strictly limited redactions. Exhibits 2 and 3 to
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`PMP/Altria’s Opposition to Reynolds’s Motion to Dismiss Inequitable Conduct Counterclaim
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`and Affirmative Defenses and Memorandum in Support of their Cross-Motion for Attorneys’
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`Fees and Costs contains materials that fall within the scope of the stipulated protective order.
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`Placing these materials under seal is proper because the public’s interest in access is outweighed
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`by a party’s interest in “preserving confidentiality” of the limited amount of confidential
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`information that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman,
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`Case 1:20-cv-00393-LO-TCB Document 778-1 Filed 07/07/21 Page 4 of 4 PageID# 20983
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`No. 1:08-cv-371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex rel. Carter,
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`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 Defendants are granted leave to file
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`REDACTED version of Exhibits 2 and 3 to PMP/Altria’s Opposition to Reynolds’s Motion to
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`Dismiss Inequitable Conduct Counterclaim and Affirmative Defenses and Memorandum in
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`Support of their Cross-Motion for Attorneys’ Fees and Costs.
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`And to file UNDER SEAL an un-redacted version of Exhibits 2 and 3 to PMP/Altria’s
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`Opposition to Reynolds’s Motion to Dismiss Inequitable Conduct Counterclaim and Affirmative
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`Defenses and Memorandum in Support of their Cross-Motion for Attorneys’ Fees and Costs.
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`And FURTHER ORDERED that the un-redacted version of Exhibits 2 and 3 to
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`PMP/Altria’s Opposition to Reynolds’s Motion to Dismiss Inequitable Conduct Counterclaim
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`and Affirmative Defenses and Memorandum in Support of their Cross-Motion for Attorneys’
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`Fees and Costs shall remain SEALED until further order of the Court.
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`ENTERED this _____ day of _________________, 2021.
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`Alexandria, Virginia
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