Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 1 of 8 PageID# 26129
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`
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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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`
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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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`
`
`Civil Action No. 1:20-cv-393
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`PMI/ALTRIA’S MEMORANDUM IN RESPONSE TO, AND IN SUPPORT OF,
`REYNOLDS’ MOTIONS TO SEAL
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`Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 2 of 8 PageID# 26130
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`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Local Civil Rule 5(C),
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`Altria Client Services LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris
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`Products S.A. (“PMP”) (collectively, “PMI/Altria”) respectfully submit this memorandum in
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`response to, and in support of the following motions to seal (collectively, “Motions to Seal”) filed
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`by RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor Company’s (collectively, “Reynolds”):
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`1. Motion for Leave to Seal Exhibit 1 accompanying Reynolds’ Memorandum in
`Support of Motions in Limine Nos. 1-3 (Dkt. 823);
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`2. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motions in
`Limine Nos. 4 and 5 and accompanying Exhibits 1 and 4 (Dkt. 830);
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`3. Motion for Leave to Seal Exhibits 3-6 accompanying Reynolds’ Memorandum
`in Support of Motion in Limine No. 7 (Dkt. 840);
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`4. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion in
`Limine No. 8 and accompanying Exhibits 1-6 (Dkt. 847);
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`5. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion in
`Limine No. 9 and accompanying Exhibits 1-5 (Dkt. 854);
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`6. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion in
`Limine No. 10 (Dkt. 861);
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`7. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion in
`Limine No. 11 and accompanying Exhibits 4-7 (Dkt. 868);
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`8. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion to
`Exclude The Testimony of Stacy Ehrlich and accompanying Exhibits 1-3 (Dkt.
`875);
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`9. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion to
`Exclude Certain Experts Opinions of Joseph C. McAlexander and accompanying
`Exhibits 1-3 (Dkt. 882); and
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`10. Motion for Leave to Seal Reynolds’ Memorandum in Support of Motion to
`Exclude the Testimony of Paul K. Meyer and accompanying Exhibits 1-6, 8-
`10, and 13 (Dkt. 890).
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`The proposed sealed material identified above includes PMI/Altria’s confidential, financial,
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`proprietary, and competitively sensitive business information that falls within the scope of the
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`Stipulated Protective Order. Dkt. 103. These confidential materials should remain under seal.
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`Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 3 of 8 PageID# 26131
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`I.
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`LEGAL STANDARD
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`Local Civil Rule 5(C) requires that, when a party moves to file material under seal that
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`another party has designated as confidential, “the party designating the material as confidential
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`must file a response to the motion complying with requirements (2), (3), and (4) above along with
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`a proposed order” that “shall recite the findings required by governing case law to support the
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`proposed sealing.” Loc. R. Civ. P. 5(C). These requirements are: “(2) A statement why sealing is
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`necessary, and why another procedure will not suffice, as well as appropriate evidentiary support
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`for the sealing request; (3) References to the governing case law, an analysis of the appropriate
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`standard to be applied for that specific filing, and a description of how that standard has been
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`satisfied; [and] (4) Unless permanent sealing is sought, a statement as to the period of time the
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`party seeks to have the matter maintained under seal and how the matter is to be handled upon
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`unsealing.” Id.
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`The Supreme Court has held that “the right [of the public] to inspect and copy judicial
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`records is not absolute.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). For
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`example, access to court records has been denied where “court files might have become a vehicle
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`for improper purposes.” Id. In particular, a corporation’s “strong interest in preserving the
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`confidentiality of its proprietary and trade-secret information … may justify partial sealing of court
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`records.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014). As the Fourth Circuit has
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`explained, a court has the authority to seal court documents “if the public’s right of access is
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`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
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`II.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Reynolds moved for leave to file under seal the unredacted versions of memorandums
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`submitted in support of Reynolds’ motions in limine and Daubert motions, as well as certain
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`Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 4 of 8 PageID# 26132
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`exhibits accompanying those motions. Specifically, the sensitive information that Reynolds
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`moved for leave to file under seal, and to redact from a publicly filed version, includes proprietary
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`and commercially sensitive information and documents of PMI/Altria and/or third parties.
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`1. Exhibit 1 accompanying Reynolds’ Memorandum in Support of Motions in
`Limine Nos. 1-3;
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`2. Reynolds’ Memorandum in Support of Motions in Limine Nos. 4 and 5 and
`accompanying Exhibits 1 and 4;
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`3. Exhibits 3-6 accompanying Reynolds’ Memorandum in Support of Motion in
`Limine No. 7;
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`4. Reynolds’ Memorandum in Support of Motion in Limine No. 8 and
`accompanying Exhibits 1-6;
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`5. Reynolds’ Memorandum in Support of Motion in Limine No. 9 and
`accompanying Exhibits 1-5;
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`6. Reynolds’ Memorandum in Support of Motion in Limine No. 10;
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`7. Reynolds’ Memorandum in Support of Motion in Limine No. 11 and
`accompanying Exhibits 4-7;
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`8. Reynolds’ Memorandum in Support of Motion to Exclude The Testimony of
`Stacy Ehrlich and accompanying Exhibits 1-3;
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`9. Reynolds’ Memorandum in Support of Motion to Exclude Certain Experts
`Opinions of Joseph C. McAlexander and accompanying Exhibits 1-3; and
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`10. Reynolds’ Memorandum in Support of Motion to Exclude the Testimony of
`Paul K. Meyer and accompanying Exhibits 1-6, 8-10, and 13.1
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`III. ARGUMENT
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`Although there is a general presumption that the public has the right to access documents
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`in the files of the courts, this presumption may be overcome “if the public’s right of access is
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`outweighed by competing interests.” Ashcraft, 218 F.3d at 302 (citation omitted); Stone v. Univ.
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`1 The memorandum and exhibits identified in Section II are collectively referred to as
`“Memorandum” and “Exhibits,” respectively.
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`3
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`of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To determine whether the interests in
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`sealing the records outweigh the public’s right of access, a court must follow a three-step process:
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`“(1) provide public notice of the request to seal and allow interested parties a reasonable
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`opportunity to object, (2) consider less drastic alternatives to sealing the documents, and
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`(3) provide specific reasons and factual findings supporting its decision to seal the documents and
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`for rejecting the alternatives.” Ashcraft, 218 F.3d at 302; see also Adams v. Object Innovation,
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`Inc., No. 11-cv-272, 2011 WL 7042224, at *4 (Dec. 5, 2011), report & recommendation adopted,
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`2012 WL 135428 (E.D. Va. Jan. 17, 2012). Here, three requirements are met.
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`First, the public has received notice of the request to seal and has had reasonable
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`opportunity to object. Reynolds’ Sealing Motions were publicly docketed a week ago on January
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`21, 2022, in accordance with Local Civil Rule 5, and PMI/Altria now files this memorandum in
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`support of sealing. Since the “public has had ample opportunity to object” to Reynolds’ Sealing
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`Motions and “the Court has received no objections,” the first requirement under Ashcraft is met.
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`218 F.3d at 302; see also GTSI Corp. v. Wildflower Int’l, Inc., No. 09-cv-123, 2009 WL 1248114,
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`at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel Carter v. Halliburton Co., No. 10-cv-864, 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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`Second, Reynolds seeks to seal and redact from the public record only information that
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`the parties must keep confidential pursuant to the Stipulated Protective Order. Dkt. 103.
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`Reynolds filed publicly redacted versions of their Memorandums, in addition to sealed versions,
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`and redacted only the limited portions that Reynolds seeks to seal. This selective and narrow
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`protection of confidential material constitutes “the least drastic method of shielding the
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`information at issue.” Adams, 2011 WL 7042224, at *4 (“[The] proposal to redact only the
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`Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 6 of 8 PageID# 26134
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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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`legitimate interest in information that is confidential to PMI/Altria and/or third parties. Id. The
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`information that Reynolds seeks to seal includes PMI/Altria’s confidential, proprietary, and
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`competitively sensitive business information, and thus PMI/Altria could face harm if such
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`information were to be released publicly. No procedure other than filing this information under
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`seal is sufficient to preserve the confidential and sensitive nature of the information.
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`Third, there is support for filing portions of Reynolds’ unredacted Memorandums and
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`accompanying Exhibits under seal, with publicly filed versions containing strictly limited
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`redactions. Reynolds’ Memorandums contain material that falls within the scope of the Stipulated
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`Protective Order. Dkt. 103. Placing these materials under seal is proper because the public’s
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`interest in access is outweighed by a party’s interest in “preserving confidentiality” of the limited
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`amount of confidential information that is “normally unavailable to the public.” Flexible Benefits
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`Council v. Feltman, No. 08-cv-371, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); U.S. ex
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`rel. Carter, 2011 WL 2077799, at *3. As discussed, the portions of Reynolds’ Memorandums
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`and Exhibits that are sealed concern confidential information of PMI/Altria and/or third parties.
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`IV. CONCLUSION
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`For the foregoing reasons, PMI/Altria respectfully request that Reynolds’ Sealing
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`Motions (Dkts. 823, 830, 840, 847, 854, 861, 868, 875, 882, and 890) be granted and that such
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`sealing be maintained until further Order of this Court.
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`Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 7 of 8 PageID# 26135
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`Dated: January 28, 2022
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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
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (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
`
`Gregory K. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (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
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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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`Case 1:20-cv-00393-LO-TCB Document 930 Filed 01/28/22 Page 8 of 8 PageID# 26136
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 28th day of January, 2022, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such filing
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`to all counsel of record.
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`
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`
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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