Case 1:20-cv-00393-LO-TCB Document 961 Filed 02/11/22 Page 1 of 7 PageID# 26820
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`IN THE 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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`
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`Case No. 1:20-cv-00393-LO-TCB
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`MEMORANDUM IN SUPPORT OF REYNOLDS’S MOTION TO SEAL DOCUMENTS IN
`SUPPORT OF OPPOSITION TO PM/ALTRIA’S DAUBERT MOTION TO EXCLUDE THE
`TESTIMONY OF RYAN SULLIVAN
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`Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and Rule 5(C) of the Local
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`Civil Rules, RAI Strategic Holdings, Inc., and R.J. Reynolds Vapor Company (collectively,
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`“Reynolds”) respectfully submit this memorandum in support of their Motion to Seal. The
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`proposed sealed material includes confidential, proprietary, and competitively sensitive business
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`information of Reynolds and Altria Client Services LLC, Philip Morris USA Inc., and Philip
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`Morris Products S.A. (collectively “PM/Altria”) and falls within the scope of the Stipulated
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`Protective Order. (Dkt. 103.) These confidential materials should remain under seal.
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`I.
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`LEGAL STANDARD
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`Local Civil Rule 5 requires that, when a party moves to file material under seal, the party
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`must file contemporaneously with the material for which sealing is requested a motion for leave
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`to file under seal, a non-confidential supporting memorandum, a separate non-confidential notice
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`that specifically identifies the motion as a sealing motion, and a non-confidential proposed order
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`that recites the findings required by governing case law to support the propose sealing. The non-
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`confidential memorandum must include:
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`(1) A non-confidential description of what material has been filed under seal;
`(2) A statement why sealing is necessary, and why another procedure will not
`suffice, as well as appropriate evidentiary support for the sealing request;
`(3) References to the governing case law, an analysis of the appropriate standard to
`be applied for that specific filing, and a description of how that standard has
`been satisfied;
`(4) Unless permanent sealing is sought, a statement as to the period of time the
`party seeks to have the matter maintained under seal and how the matter is to
`be handled upon unsealing.
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`Loc. R. Civ. P. 5(C).
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`“[T]he right [of the public] to inspect and copy judicial records is not absolute.” Nixon v.
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`Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Access to court records has been denied where
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`“court files might have become a vehicle for improper purposes.” Id. In particular, a corporation’s
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`“strong interest in preserving the confidentiality of its proprietary and trade-secret information …
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`may justify partial sealing of court records.” Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir.
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`2014). As set forth in the Fourth Circuit’s decision in Ashcraft v. Connoco, Inc., a court has the
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`authority to seal court documents “if the public’s right of access is outweighed by competing
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`interests.” 218 F.3d 288, 302 (4th Cir. 2000). Before granting a motion to seal, a court must
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`consider the following: “(1) provide public notice of the request to seal and allow interested parties
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`a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents,
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`and (3) provide specific reasons and factual findings supporting its decision to seal the documents
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`and for rejecting the alternatives.” Id.; Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-
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`DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted,
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`2012 WL 135428 (E.D. Va. Jan. 17, 2012). All three requirements are met here.
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`Case 1:20-cv-00393-LO-TCB Document 961 Filed 02/11/22 Page 3 of 7 PageID# 26822
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`The materials that Reynolds moves for leave to seal include highly confidential and
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`proprietary business information of Reynolds, PM/Altria, and third parties, and should be kept
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`under seal permanently for the reasons described below.
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`II.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`Reynolds seeks leave to file under seal un-redacted versions of the following:
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`1. Reynolds’s Opposition to PM/Altria’s Daubert Motion to Exclude the Testimony
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`of Ryan Sullivan; and
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`2. Accompanying Exhibits 1-5, and 7.
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`Specifically, the sensitive information that Reynolds moves for leave to file under seal, and
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`to redact from the publicly filed versions, includes proprietary and commercially sensitive
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`materials from Reynolds, PM/Altria, and third parties, such as confidential license agreement
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`terms, descriptions of internal business documents, and expert reports and deposition testimony
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`regarding confidential business information.
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`III.
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`ARGUMENT
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`A.
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`THE PUBLIC HAS HAD AMPLE NOTICE.
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`The public has received notice of the request to seal and has had reasonable opportunity to
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`object. Reynolds’s sealing motion was publicly docketed in accordance with Local Civil Rule 5.
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`PM/Altria will have an opportunity to respond and, once the “public has had ample opportunity to
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`object” to Reynolds’s motion and “the Court has received no objections,” the first requirement
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`under Ashcraft, 218 F.3d at 302, may be deemed satisfied. GTSI Corp. v. Wildflower Int’l, Inc.,
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`No. 1:09-cv-123 (JCC), 2009 WL 1248114, at *9 (E.D. Va. Apr. 30, 2009); U.S. ex rel Carter v.
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`Halliburton Co., No. 1:10-cv-864 (JCC/TCB), 2011 WL 2077799, at *3 (E.D. Va. May 24, 2011)
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`(“[T]he parties provided public notice of the request to seal that allowed interested parties a
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`reasonable opportunity to object—nearly two weeks.”).
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`Case 1:20-cv-00393-LO-TCB Document 961 Filed 02/11/22 Page 4 of 7 PageID# 26823
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`
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`B. REYNOLDS HAS SOUGHT THE LEAST DRASTIC MEASURES.
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`Reynolds seeks to seal and redact from the public record only information that the parties
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`must keep confidential pursuant to the Stipulated Protective Order. (Dkt. 103.) Reynolds has filed
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`publicly redacted versions of Reynolds’s Opposition to PM/Altria’s Daubert Motion to Exclude
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`the Testimony of Ryan Sullivan and accompanying Exhibits 1 and 4, in addition to sealed versions
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`of those filings, and has redacted only those limited portions it seeks to seal. Only Exhibits 2-3,
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`5, and 7 have been filed wholly under seal. This selective and narrow protection of confidential
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`material constitutes the least drastic method of shielding the information at issue. Adams, 2011
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`WL 7042224, at *4 (The “proposal to redact only the proprietary and confidential information,
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`rather than seal the entirety of his declaration, constitutes the least drastic method of shielding the
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`information at issue.”). The information that Reynolds seeks to seal includes confidential,
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`proprietary, and competitively sensitive business information of Reynolds, PM/Altria, and third
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`parties, each of which could face harm if such information were to be released publicly. The public
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`has no legitimate interest in information that is confidential to Reynolds, PM/Altria, and third
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`parties. Id. at *4. No procedure other than filing this information under seal is sufficient to preserve
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`the confidential and sensitive nature of the information.
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`C. THE MATERIALS ARE HIGHLY SENSITIVE AND CONFIDENTIAL.
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`There is support for filing Reynolds’s Opposition to PM/Altria’s Daubert Motion to
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`Exclude the Testimony of Ryan Sullivan and accompanying Exhibits 1 and 4 under seal, with
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`publicly filed versions containing strictly limited redactions, and for filing all of Exhibits 2-3, 5,
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`and 7 under seal. These filings contain material that falls within the scope of the Stipulated
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`Protective Order, (Dkt. 103.), including confidential license terms and discussions of those terms,
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`along with other confidential internal business documents. Placing these materials under seal is
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`proper because the public’s interest in access is outweighed by a party’s interest in “preserving
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`Case 1:20-cv-00393-LO-TCB Document 961 Filed 02/11/22 Page 5 of 7 PageID# 26824
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`confidentiality” of the limited amount of confidential information that is “normally unavailable to
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`the public.” Flexible Benefits Council v. Feltman, No. 1:08-cv-00371 (JCC), 2008 WL 4924711,
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`at *1 (E.D. Va. Nov. 13, 2008); United States ex rel. Carter, 2011 WL 2077799, at *3. In particular,
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`disclosing the confidential terms of license agreements, and the other internal business documents,
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`would be highly prejudicial to the business interests of Reynolds, PM/Altria, and third parties, and
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`the public has no legitimate interest in obtaining such information.
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`IV.
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` CONCLUSION
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`For the foregoing reasons, Reynolds respectfully requests that that the Court grant this
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`Motion and enter the proposed Order.
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`Case 1:20-cv-00393-LO-TCB Document 961 Filed 02/11/22 Page 6 of 7 PageID# 26825
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`Dated: February 11, 2022
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`
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`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
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`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
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`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`Respectfully submitted,
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` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
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`Charles B. Molster, III Va. Bar No. 23613
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`Case 1:20-cv-00393-LO-TCB Document 961 Filed 02/11/22 Page 7 of 7 PageID# 26826
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 11th day of February, 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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`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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