Case 1:20-cv-00393-LO-TCB Document 944 Filed 01/31/22 Page 1 of 5 PageID# 26194
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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. 920) filed by Philip Morris Products
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`S.A., Phillip Morris USA Inc., and Altria Client Services, LLC (collectively, “PM/Altria”) to(cid:3)
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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 Design-Around Testimony of Reynolds’s Expert, David Clissold and accompanying
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`Exhibits 1-5, 9, and 10(cid:3)(cid:11)(cid:39)(cid:78)(cid:87)(cid:17)(cid:3)(cid:28)(cid:21)(cid:21)(cid:12) pursuant to Federal Rule of Civil Procedure 5.2(d) and Local
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`Civil Rule 5(C). Because the documents that PM/Altria seeks to seal contain confidential,
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`proprietary, and competitively sensitive business, financial, and design information of the RAI
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`Strategic Holdings, Inc., and R.J. Reynolds Vapor Company (collectively, “Reynolds”),
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`Reynolds filed a memorandum in support of PM/Altria’s sealing request. (cid:11)(cid:39)(cid:78)(cid:87)(cid:17)(cid:3)(cid:28)(cid:21)(cid:28)(cid:17)(cid:12)
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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 944 Filed 01/31/22 Page 2 of 5 PageID# 26195
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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 Design-Around Testimony of
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`Reynolds’s Expert, David Clissold and accompanying Exhibits 1-5, 9, and 10 (Dkt. 918), in
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`addition to a sealed version (Dkt. 922), and has redacted only those limited portions it seeks to
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`seal. This selective and narrow protection of confidential material constitutes the least drastic
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`method of shielding the information at issue. Adams v. Object Innovation, Inc., No. 3:11CV272-
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`REP-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 944 Filed 01/31/22 Page 3 of 5 PageID# 26196
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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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`(cid:120) PM/Altria’s Brief in Support of PM/Altria’s Daubert Motion to Exclude Design-
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`Around Testimony of Reynolds’s Expert, David Clissold;
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`(cid:120) Exhibit 1, which are excerpts from the confidential Expert Report of David B.
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`Clissold, Esq. in Response to Amended and Supplemented Opening Report of
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`Stacy Ehrlich;
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`(cid:120) Exhibit 2, which are excerpts from the confidential deposition transcript of David
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`Clissold taken May 14, 2021;
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`(cid:120) Exhibit 3, which are excerpts from the confidential Report of Ryan Sullivan,
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`Ph.D. (March 24, 2021);
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`(cid:120) Exhibit 4, which are excerpts from the confidential Opening Expert Report of
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`Paul K. Meyer (February 24, 2021);
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`(cid:120) Exhibit 5, which are excerpts from the confidential deposition transcript of Ryan
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`Sullivan, Ph.D. taken May 11, 2021;
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`3
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`(cid:120) Exhibit 9, which are excerpts from the confidential Opening Expert Report of
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`Stacy Ehrlich (February 24, 2021);
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`(cid:120) Exhibit 10, which are excerpts from the confidential transcript of the Open/Closed
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`Sessions from 337-TA-1199 (January 27, 2021).
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`3.(cid:3)
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`There is support for filing portions of PM/Altria’s Brief in Support of PM/Altria’s(cid:3)
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`Daubert Motion to Exclude Design-Around Testimony of Reynolds’s Expert, David Clissold and
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`accompanying Exhibits 1-5, 9, and 10 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
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`Design-Around Testimony of Reynolds’s Expert, David Clissold and accompanying Exhibits 1-
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`5, 9, and 10 contain materials that fall within the scope of the stipulated protective order. Placing
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`these materials under seal is proper because the public’s interest in access is outweighed by a
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`party’s interest in “preserving confidentiality” of the limited amount of confidential information
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`that is “normally unavailable to the public.” Flexible Benefits Council v. Feltman, No.
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`1:08CV371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States ex rel.
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`Carter, 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(cid:3)(cid:11)(cid:39)(cid:78)(cid:87)(cid:17)(cid:3)(cid:28)(cid:21)(cid:19)(cid:12) 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 Design-Around Testimony of Reynolds’s Expert, David Clissold and accompanying
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`Exhibits 1-5, 9, and 10(cid:3)(cid:11)(cid:39)(cid:78)(cid:87)(cid:17)(cid:3)(cid:28)(cid:20)(cid:27)(cid:12)(cid:17)(cid:3)
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`And to file UNDER SEAL un-redacted versions of PM/Altria’s Brief in Support of PM/
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`Altria’s Daubert Motion to Exclude Design-Around Testimony of Reynolds’s Expert, David
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`Clissold and accompanying Exhibits 1-5, 9, and 10. (cid:11)(cid:39)(cid:78)(cid:87)(cid:17)(cid:3)(cid:28)(cid:21)(cid:21)(cid:17)(cid:12)(cid:3)
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`4
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`Case 1:20-cv-00393-LO-TCB Document 944 Filed 01/31/22 Page 5 of 5 PageID# 26198
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`And it is FURTHER ORDERED that un-redacted versions of PM/Altria’s Brief in
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`Support of PM/Altria’s Daubert Motion to Exclude Design-Around Testimony of Reynolds’s
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`Expert, David Clissold and accompanying Exhibits 1-5, 9, and 10 shall remain SEALED until
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`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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`(cid:36)(cid:79)(cid:72)(cid:91)(cid:68)(cid:81)(cid:71)(cid:85)(cid:76)(cid:68)(cid:15)(cid:3)(cid:57)(cid:76)(cid:85)(cid:74)(cid:76)(cid:81)(cid:76)(cid:68)(cid:3)
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`5
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