`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`v.
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim Defendants,
`
`
`
`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
`
`
`[PROPOSED] ORDER GRANTING REYNOLDS’S MOTION TO SEAL REYNOLDS’S
`MEMORANDUM IN OPPOSITION TO PM/ALTRIA’S MOTION TO EXCLUDE
`OPINIONS OF RJR’S EXPERTS BASED ON REJECTED CLAIM CONSTRUCTIONS
`AND ACCOMPANYING EXHIBITS 2−9
`
`This matter is before the Court on the motion filed by RAI Strategic Holdings, Inc. and
`
`R.J. Reynolds Vapor Company (collectively, “Reynolds”) to file under seal Reynolds’s
`
`Memorandum in Opposition to PM/Altria’s Motion to Exclude Opinions of RJR’s Experts Based
`
`on Rejected Claim Constructions and accompanying Exhibits 2−9 pursuant to Federal Rule of
`
`Civil Procedure 5.2(d) and Local Civil Rule 5(C).
`
`Before this Court may seal documents, it must: “(1) give public notice of the request to
`
`seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic
`
`alternatives to sealing the documents, and (3) provide specific reasons and factual findings
`
`supporting its decision to seal the documents and for rejecting the alternatives.” Ashcraft v.
`
`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
`
`
`
`1
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 948-1 Filed 02/11/22 Page 2 of 5 PageID# 26231
`
`of Reynolds’s motion to seal and its memorandum in support thereof, the Court hereby FINDS as
`
`follows:
`
`1.
`
`The public has received notice of the request to seal and has had reasonable
`
`opportunity to object. Reynolds’s sealing motion was publicly docketed in accordance with Local
`
`Civil Rule 5. PM/Altria has had an opportunity to respond. The “public has had ample opportunity
`
`to object” to Reynolds’s motion and, because “the Court has received no objections,” the first
`
`requirement under Ashcraft, 218 F.3d at 288, has been satisfied. GTSI Corp. v. Wildflower Int’l,
`
`Inc., No. 1:09CV123 (JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); United States ex
`
`rel. Carter v. Halliburton Co., No. 1:10cv864 (JCC/TCB), 2011 WL 2077799, at *3 (E.D. Va.
`
`May 24, 2011) (“[T]he parties provided public notice of the request to seal that allowed interested
`
`parties a reasonable opportunity to object—nearly two weeks.”).
`
`2.
`
`Reynolds seeks to seal and redact from the public record only information
`
`designated by the parties as confidential. Reynolds has filed publicly redacted versions of
`
`Reynolds’s Memorandum in Opposition to PM/Altria’s Motion to Exclude Opinions of RJR’s
`
`Experts Based on Rejected Claim Constructions and accompanying Exhibits 2−9, in addition to a
`
`sealed version, and have redacted only those limited portions it seeks to seal. This selective and
`
`narrow protection of confidential material constitutes the least drastic method of shielding the
`
`information at issue. Adams v. Object Innovation, Inc., No. 3:11cv272-REP-DWD, 2011 WL
`
`7042224, at *4 (E.D. Va. Dec. 5, 2011) (The “proposal to redact only the proprietary and
`
`confidential information, rather than seal the entirety of his declaration, constitutes the least drastic
`
`method of shielding the information at issue.”). The public has no legitimate interest in
`
`information that is confidential to Reynolds or third parties. The information that Reynolds seeks
`
`to seal includes confidential, proprietary, and competitively sensitive business information of
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 948-1 Filed 02/11/22 Page 3 of 5 PageID# 26232
`
`Reynolds and third parties, each of which could face harm if such information were to be released
`
`publicly. Specifically, the sensitive information that Reynolds moves for leave to file under seal
`
`and to redact from the public version relates to proprietary and commercially sensitive materials
`
`describing details of the accused products and their components, as well as information from
`
`confidential regulatory filings.
`
`3.
`
`There is support for filing Reynolds’s Memorandum in Opposition to PM/Altria’s
`
`Motion to Exclude Opinions of RJR’s Experts Based on Rejected Claim Constructions and
`
`accompanying Exhibits 2−9 under seal. Reynolds’s Memorandum in Opposition to PM/Altria’s
`
`Motion to Exclude Opinions of RJR’s Experts Based on Rejected Claim Constructions and
`
`accompanying Exhibits 2−9 contain material that falls within the scope of the stipulated protective
`
`order. Placing these materials under seal is proper because the public’s interest in access is
`
`outweighed by a party’s interest in “preserving confidentiality” of the limited amount of
`
`confidential information that is “normally unavailable to the public.” Flexible Benefits Council v.
`
`Feltman, No. 1:08cv371 (JCC), 2008 WL 4924711, at *1 (E.D. Va. Nov. 13, 2008); United States
`
`ex rel. Carter, 2011 WL 2077799, at *3.
`
`Therefore, based on the findings above, for good cause shown, it is hereby
`
`ORDERED that the motion is GRANTED, and Reynolds is granted leave to file a
`
`REDACTED version of Reynolds’s Memorandum in Opposition to PM/Altria’s Motion to
`
`Exclude Opinions of RJR’s Experts Based on Rejected Claim Constructions and accompanying
`
`Exhibits 2−9.
`
`And to file UNDER SEAL an un-redacted version of Reynolds’s Memorandum in
`
`Opposition to PM/Altria’s Motion to Exclude Opinions of RJR’s Experts Based on Rejected Claim
`
`Constructions and accompanying Exhibits 2−9.
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 948-1 Filed 02/11/22 Page 4 of 5 PageID# 26233
`
`And FURTHER ORDERED that the un-redacted version of Reynolds’s Memorandum in
`
`Opposition to PM/Altria’s Motion to Exclude Opinions of RJR’s Experts Based on Rejected Claim
`
`Constructions and accompanying Exhibits 2−9 shall remain SEALED until further order of the
`
`Court.
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 948-1 Filed 02/11/22 Page 5 of 5 PageID# 26234
`
`
`
`ENTERED this _____ day of _________________, 2022.
`
`Alexandria, Virginia
`
`
`
`
`
`
`
`
`
`
`
`
`
`__________________________________________
`
`THERESA CARROLL BUCHANAN
`
`UNITED STATES MAGISTRATE JUDGE
`
`