Case 1:20-cv-00393-LO-TCB Document 781 Filed 07/08/21 Page 1 of 6 PageID# 20994
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`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.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`
`
`
`COUNTERCLAIM PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR
`SCHEDULING ORDER SETTING IN LIMINE/DAUBERT MOTION DATES
`
`
`
`
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 781 Filed 07/08/21 Page 2 of 6 PageID# 20995
`
`
`
`I.
`
`INTRODUCTION
`
`There is no dispute that the present case is trial-ready, and that the only remaining dates to
`
`be scheduled in advance of trial are dates for in limine and Daubert motions. Through no fault of
`
`the Court or the parties, this case has been delayed significantly already. Reynolds’ selective
`
`recollections notwithstanding, the Court informed the parties at the pretrial conference that, should
`
`an opportunity arise for an earlier trial date, it would make that available. Reynolds’ only
`
`remaining firewall to delay such earlier trial opportunity is the outstanding briefing of in limine
`
`and Daubert motions. But Reynolds provides no genuine reason why the parties should not
`
`complete this remaining briefing now. Rather Reynolds requests that this case sit idle for seven
`
`months based only on hypothetical and irrelevant concerns that the pending summary judgment
`
`motions, ongoing ITC proceedings on Reynolds’ patents, and Reynolds’ pending inter partes
`
`review (IPR) petitions “may” have an impact. But Reynolds fails to show how these future events
`
`necessitate postponing motions in limine or Daubert motions, and provides no reason why this
`
`remaining briefing should not proceed in an orderly and timely manner over the next few months
`
`to allow this case to go to trial this Fall if the Court’s schedule permits.
`
`II.
`
`ARGUMENT
`
`As an initial matter, Reynolds incorrectly implies that “the Court’s original timeline”
`
`provides that in limine and Daubert motions are to be postponed until shortly before trial, i.e.,
`
`April 2022. Dkt. 779 at 4. The Court has set no such dates for briefing in limine and Daubert
`
`motions. Rather, the parties are to “meet and confer and submit a briefing schedule for any such
`
`motions” such that they can be heard at least two weeks before trial. Dkt. 97 at 24. PMP/Altria’s
`
`proposed schedule allows in limine and Daubert motions to be fully briefed and heard in the event
`
`trial is scheduled for Fall 2021. Reynolds’ proposed schedule does not. Each of Reynolds’
`
`1
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 781 Filed 07/08/21 Page 3 of 6 PageID# 20996
`
`
`
`contrived reasons why in limine and Daubert motions should be delayed for seven months until
`
`January 2022 fall flat.
`
`First, Reynolds contends that the parties’ motions for summary judgment “will plainly
`
`impact” the evidentiary motions that the parties may choose to bring. Dkt. 779 at 2. But as
`
`Reynolds admits, briefing on summary judgment is already completed and will be heard on July
`
`16—well before any in limine or Daubert motions are filed under PMP/Altria’s proposed schedule.
`
`In any event, Reynolds fails to identify even a single evidentiary issue that would be “plainly
`
`impacted” by the pending summary judgment motions, and this Court routinely schedules in limine
`
`and Daubert briefing while summary judgment motions are under advisement. Reynolds’
`
`purported scheduling concerns as they relate to motions for summary judgment would apply in
`
`virtually all cases under this Court’s typical (non-pandemic) pre-trial and trial scheduling.
`
`Second, Reynolds contends that in limine and Daubert motions must be postponed until
`
`after the Final Determination in the corresponding ITC investigation issues in September 2021.
`
`Id. at 3. But the ongoing ITC proceedings are relevant, if at all, solely to injunctive remedy that
`
`will be taken up post-verdict and thus have no bearing on in limine and Daubert motions. And as
`
`Reynolds concedes, the Court has stayed any expert discovery on injunctive relief, obviating the
`
`need for any Daubert motions on the issue. Dkt. 702. Reynolds has not identified a single trial
`
`evidentiary issue that would be impacted by the pending ITC proceedings (let alone one that would
`
`be the subject of an in limine or Daubert motion).
`
`Third, Reynolds contends that if the PTAB institutes Reynolds’ petitions for inter partes
`
`review of PMP/Altria’s patents in September to November 2021, Reynolds expects that the parties
`
`“may have to brief the admissibility of evidence from the ongoing IPR proceedings at trial.” Id.
`
`at 3-4. But it is undisputed that Reynolds’ IPR petitions are absent from Reynolds’ exhibit list and
`
`2
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 781 Filed 07/08/21 Page 4 of 6 PageID# 20997
`
`
`
`are not the subject of any expert reports/testimony. Any institution decisions in the pending IPRs
`
`are thus irrelevant to the in limine and Daubert motions. In any event, the admissibility of any
`
`such documents would be readily addressed through specific objections, and certainly does not
`
`warrant or justify a seven-month delay of in limine and Daubert briefing.
`
`None of Reynolds’ excuses for still further delay of this case warrant deferring in limine or
`
`Daubert motions.
`
`III. CONCLUSION
`
`PMP/Altria respectfully request that the Court enter a schedule that requires in limine and
`
`Daubert motion briefing to proceed in August-September 2021 in order to permit trial in Fall 2021
`
`should such earlier trial date become available.
`
`
`
`Dated: July 8, 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
`
`
`3
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 781 Filed 07/08/21 Page 5 of 6 PageID# 20998
`
`
`
`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.
`
`4
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 781 Filed 07/08/21 Page 6 of 6 PageID# 20999
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 8th day of July, 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)
`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.
`
`5
`
`