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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`v.
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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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`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 PM/ALTRIA’S MOTION TO SEAL
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`This matter is before the Court on the motion (Dkt. 913) filed by Philip Morris Products
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`S.A., Phillip Morris USA Inc., and Altria Client Services, LLC (collectively, “PM/Altria”) to
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`seal un-redacted versions of PM/Altria’s Brief in Support of PM/Altria’s Daubert Motion To
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`Exclude The Opinions of Reynolds’s Damages Expert, Dr. Ryan Sullivan and accompanying
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`Exhibits 1-13 pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Civil Rule 5(C).
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`Because the documents that PM/Altria seeks to seal contain confidential, proprietary, and
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`competitively sensitive business, financial, and design information of the RAI Strategic
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`Holdings, Inc., and R.J. Reynolds Vapor Company (collectively, “Reynolds”), Reynolds filed a
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`memorandum in support of PM/Altria’s 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 928-1 Filed 01/28/22 Page 2 of 5 PageID# 26112
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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 288, 302 (4th Cir. 2000) (internal citations omitted). Upon consideration
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`of PM/Altria’s 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. PM/Altria’s sealing motion was publicly docketed in accordance with
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`Local Civil Rule 5. Reynolds has filed a memorandum in support of sealing. The “public has had
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`ample opportunity to object” to PM/Altria’s 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. 1:09CV123 (JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30,
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`2009); United States ex rel. Carter v. Halliburton Co., No. 1:10CV864 (JCC/TCB), 2011 WL
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`2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the request to
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`seal that allowed interested parties a reasonable opportunity to object—nearly two weeks.”).
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`2.
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`PM/Altria seeks to seal and redact from the public record only information
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`designated by the parties as confidential. PM/Altria has filed publicly a redacted version of its
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`Brief in Support of PM/Altria’s Daubert Motion To Exclude The Opinions of Reynolds’s
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`Damages Expert, Dr. Ryan Sullivan and accompanying Exhibits 1-13 (Dkt. 911), in addition to a
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`sealed version (Dkt. 915), and has redacted only those limited portions it seeks to seal. This
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`selective and narrow protection of confidential material constitutes the least drastic method of
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`shielding the information at issue. Adams v. Object Innovation, Inc., No. 3:11CV272-REP-
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`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011) (The “proposal to redact only the
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`proprietary and confidential information, rather than seal the entirety of his declaration,
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`constitutes the least drastic method of shielding the information at issue.”). The public has no
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`2
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`Case 1:20-cv-00393-LO-TCB Document 928-1 Filed 01/28/22 Page 3 of 5 PageID# 26113
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`legitimate interest in information that is confidential to PM/Altria and Reynolds. Id. (“[T]here is
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`no legitimate public interest in disclosing the proprietary and confidential information of [the
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`defendant] … and disclosure to the public could result in significant damage to the company.”).
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`The information that PM/Altria seeks to seal includes confidential, proprietary, and
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`competitively sensitive business information of PM/Altria, Reynolds, and/or third parties, each
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`of which could face harm if such information were to be released publicly. Specifically, the
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`sensitive information that PM/Altria move for leave to file under seal, and to redact from a
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`publicly filed version, includes proprietary and commercially sensitive business, financial, and
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`design information of PM/Altria, Reynolds, and/or third parties:
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`• PM/Altria’s Brief in Support of PM/Altria’s Daubert Motion To Exclude The
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`Opinions Of Reynolds’ Damages Expert, Dr. Ryan Sullivan;
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`• Exhibit 1, which are excerpts of the confidential deposition transcript of Nicholas
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`Ray Gilley;
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`• Exhibit 2, which are excerpts of the confidential amended and supplemental
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`opening expert report of Paul Meyer;
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`• Exhibit 3, which are excerpts from a confidential settlement and license
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`agreement;
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`• Exhibit 4, which are excerpts from the confidential deposition transcript of Dr.
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`Ryan Sullivan;
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`• Exhibit 5, which are excerpts from the confidential rebuttal expert report of Ryan
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`Sullivan;
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`• Exhibit 6, which are excerpts from the confidential deposition transcript of Paul
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`Meyer;
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`3
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`Case 1:20-cv-00393-LO-TCB Document 928-1 Filed 01/28/22 Page 4 of 5 PageID# 26114
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`• Exhibit 7, which are excerpts from the confidential deposition transcript of Eric
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`Hunt;
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`• Exhibit 8, which are excerpts from the confidential opening expert report of Stacy
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`Ehrlich;
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`• Exhibit 9, which are excerpts from the confidential deposition transcript of John
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`Scott Peddycord;
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`• Exhibit 10, which are excerpts from the confidential supplemental expert report of
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`Ryan Sullivan;
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`• Exhibit 11, which are excerpts from a confidential settlement and license
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`agreement;
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`• Exhibit 12, which is a confidential document produced by Reynolds bearing Bates
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`No. RJREDVA_001621749; and
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`• Exhibit 13, which is a confidential document produced by Reynolds bearing Bates
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`Nos. RJREDVA_001614141.
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`3.
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`There is support for filing portions of PM/Altria’s Brief in Support of PM/Altria’s
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`Daubert Motion To Exclude The Opinions Of Reynolds’ Damages Expert, Dr. Ryan Sullivan
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`and accompanying Exhibits 1-13 under seal, with publicly filed versions containing strictly
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`limited redactions. PM/Altria’s Brief in Support of PM/Altria’s Daubert Motion To Exclude The
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`Opinions of Reynolds’s Damages Expert, Dr. Ryan Sullivan and accompanying Exhibits 1-13
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`contain materials that fall within the scope of the stipulated protective order. Placing these
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`materials under seal is proper because the public’s interest in access is outweighed by a party’s
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`interest in “preserving confidentiality” of the limited amount of confidential information that is
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`“normally unavailable to the public.” Flexible Benefits Council v. Feltman, No. 1:08CV371-JCC,
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`4
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`Case 1:20-cv-00393-LO-TCB Document 928-1 Filed 01/28/22 Page 5 of 5 PageID# 26115
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`2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States ex rel. Carter, 2011 WL
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`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 PM/Altria is granted leave to file
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`REDACTED versions of PM/Altria’s Brief in Support of PM/Altria’s Daubert Motion To
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`Exclude The Opinions of Reynolds’s Damages Expert, Dr. Ryan Sullivan and accompanying
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`Exhibits 1-13.
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`And to file UNDER SEAL un-redacted versions of PM/Altria’s Brief in Support of
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`PM/Altria’s Daubert Motion To Exclude The Opinions of Reynolds’s Damages Expert, Dr. Ryan
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`Sullivan and accompanying Exhibits 1-13.
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`And FURTHER ORDERED that un-redacted versions of PM/Altria’s Brief in Support
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`of PM/Altria’s Daubert Motion To Exclude The Opinions of Reynolds’s Damages Expert, Dr.
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`Ryan Sullivan and accompanying Exhibits 1-13 shall remain SEALED until further order of the
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`Court.
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`ENTERED this _____ day of _________________, 2022.
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`Alexandria, Virginia
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`__________________________________________
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`THERESA CARROLL BUCHANAN
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`UNITED STATES MAGISTRATE JUDGE
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`5
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