Case 1:20-cv-00393-LO-TCB Document 941 Filed 01/31/22 Page 1 of 6 PageID# 26178
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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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`(cid:3)
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`ORDER GRANTING PM/ALTRIA’S MOTION TO SEAL
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`This matter is before the Court on the motion (Dkt. 899) 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 Omnibus Motion in
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`Limine and Exhibits 2-5, 8-9, 12-15, 17-18, 20-29 and 35 pursuant to Federal Rule of Civil
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`Procedure 5.2(d) and Local Civil Rule 5(C). Because the documents that PM/Altria seeks to seal
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`contain confidential, proprietary, and competitively sensitive business, financial, and design
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`information of the RAI Strategic Holdings, Inc., and R.J. Reynolds Vapor Company
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`(collectively, “Reynolds”), Reynolds filed a memorandum in support of PM/Altria’s sealing
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`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 941 Filed 01/31/22 Page 2 of 6 PageID# 26179
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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 Omnibus Motion in Limine and Exhibits 2-5, 8-9, 12-15, 17-18,
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`20-29 and 35 (Dkt. 895), in addition to a sealed version (Dkt. 901), and has redacted only those
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`limited portions it seeks to seal. This selective and narrow protection of confidential material
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`constitutes the least drastic method of shielding the information at issue. Adams v. Object
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`Innovation, Inc., No. 3:11CV272-REP-DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011)
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`(The “proposal to redact only the proprietary and confidential information, rather than seal the
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`entirety of his declaration, constitutes the least drastic method of shielding the information at
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`issue.”). The public has no legitimate interest in information that is confidential to PM/Altria and
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`2
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`Case 1:20-cv-00393-LO-TCB Document 941 Filed 01/31/22 Page 3 of 6 PageID# 26180
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`Reynolds. Id. (“[T]here is no legitimate public interest in disclosing the proprietary and
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`confidential information of [the defendant] … and disclosure to the public could result in
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`significant damage to the company.”). The information that PM/Altria seeks to seal includes
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`confidential, proprietary, and competitively sensitive business information of PM/Altria,
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`Reynolds, and/or third parties, each of which could face harm if such information were to be
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`released publicly. Specifically, the sensitive information that PM/Altria move for leave to file
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`under seal, and to redact from a publicly filed version, includes proprietary and commercially
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`sensitive business, financial, and design information of PM/Altria, Reynolds, and/or third parties:
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`(cid:120) PM/Altria’s Brief in Support of PM/Altria’s Omnibus Motion in Limine;
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`(cid:120) Exhibit 2, which are excerpts from the confidential opening expert report of Paul
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`Meyer;
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`(cid:120) Exhibit 3, which are excerpts from the confidential rebuttal expert report of Ryan
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`Sullivan;
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`(cid:120) Exhibit 4, which are excerpts from the confidential deposition transcript of Ryan
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`Sullivan;
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`(cid:120) Exhibit 5, which are excerpts from Reynolds confidential interrogatory responses
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`(November 25, 2020);
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`(cid:120) Exhibit 8, which are excerpts from the confidential opening expert report of
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`Travis Blalock;
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`(cid:120) Exhibit 9, which are excerpts from the confidential opening expert report of Kelly
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`Kodama regarding U.S. Patent No. 10,555,556;
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`(cid:120) Exhibit 12, which are excerpts from Reynolds’s confidential interrogatory
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`responses (April 12, 2021);
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`3
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`(cid:120) Exhibit 13, which are excerpts from the confidential rebuttal expert report of
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`Travis Blalock;
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`(cid:120) Exhibit 14, which are excerpts from the confidential rebuttal expert report of
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`Jeffrey Suhling;
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`(cid:120) Exhibit 15, which are excerpts from Reynolds’s confidential interrogatory
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`responses (November 3, 2020);
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`(cid:120) Exhibit 17, which are excerpts from PM/Altria’s confidential interrogatory
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`responses (April 28, 2021);
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`(cid:120) Exhibit 18, which are excerpts from the confidential deposition transcript of
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`James Figlar (June 24, 2021);
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`(cid:120) Exhibit 20, which are excerpts from the confidential ITC rebuttal expert report of
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`Stacy Ehrlich;
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`(cid:120) Exhibit 21, which are excerpts from the confidential opening expert report of
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`Stacy Ehrlich;
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`(cid:120) Exhibit 22, which are excerpts from the confidential rebuttal expert report of
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`David Clissold;
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`(cid:120) Exhibit 23, which are excerpts from a confidential settlement and license
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`agreement;
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`(cid:120) Exhibit 24, which are excerpts from a confidential settlement and license
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`agreement;
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`(cid:120) Exhibit 25, which are excerpts from Reynolds’s confidential interrogatory
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`responses (March 29, 2021);
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`4
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`Case 1:20-cv-00393-LO-TCB Document 941 Filed 01/31/22 Page 5 of 6 PageID# 26182
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`(cid:120) Exhibit 26, which are excerpts from the confidential deposition transcript of
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`Nicholas Ray Gilley;
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`(cid:120) Exhibit 27, which is confidential correspondence from Jennifer Koh (March 19,
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`2021);
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`(cid:120) Exhibit 28, which is confidential correspondence from Jennifer Koh (March 6,
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`2021);
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`(cid:120) Exhibit 29, which is confidential correspondence from Jennifer Koh
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`(November 10, 2020); and
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`(cid:120) Exhibit 35, which are excerpts from the confidential rebuttal expert report of
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`Kelly Kodama regarding U.S. Patent No. 10,555,556.
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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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`Omnibus Motion in Limine and Exhibits 2-5, 8-9, 12-15, 17-18, 20-29 and 35 under seal, with
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`publicly filed versions containing strictly limited redactions. PM/Altria’s Brief in Support of
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`PM/Altria’s Omnibus Motion in Limine and Exhibits 2-5, 8-9, 12-15, 17-18, 20-29 and 35
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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
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`(JCC), 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States ex rel. Carter, 2011
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`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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`5
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`Case 1:20-cv-00393-LO-TCB Document 941 Filed 01/31/22 Page 6 of 6 PageID# 26183
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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 Omnibus Motion in
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`Limine and Exhibits 2-5, 8-9, 12-15, 17-18, 20-29 and 35.
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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 Omnibus Motion in Limine and Exhibits 2-5, 8-9, 12-15, 17-18, 20-29 and 35.
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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 Omnibus Motion in Limine and Exhibits 2-5, 8-9, 12-15, 17-18, 20-29 and 35
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`shall remain SEALED until further order of the Court.
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`ENTERED this (cid:22)(cid:20)(cid:86)(cid:87) day of (cid:45)(cid:68)(cid:81)(cid:88)(cid:68)(cid:85)(cid:92), 2022.
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`/s/
`__________________________________________
`THERESA CARROLL BUCHANAN
`UNITED STATES MAGISTRATE JUDGE
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`Alexandria, Virginia
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`6
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