Case 1:20-cv-00393-LO-TCB Document 972-4 Filed 02/11/22 Page 1 of 3 PageID# 27517
`Case 1:20-cv-00393-LO-TCB Document 972-4 Filed 02/11/22 Page 1 of 3 PagelD# 27517
`
`EXHIBIT D
`EXHIBIT D
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 972-4 Filed 02/11/22 Page 2 of 3 PageID# 27518
`
`From:
`To:
`Cc:
`Subject:
`Date:
`
`Schubert, Jared (NY)
`Michalik, John M.; RJREDVA; cmolster@molsterlaw.com
`#C-M PMIEDVA - LW TEAM
`PMI/Altria v. Reynolds - Motions in Limine
`Wednesday, January 26, 2022 12:18:37 PM
`
`John,
`
`We write to follow up on the parties’ prior discussions regarding Reynolds’ MIL Nos. 4-6, and 10 (as
`filed).
`
`RJR’s MIL #4: RJR seeks to exclude “all evidence and argument regarding any request for, or alleged
`entitlement to, an injunction.” We believe that RJR’s request is overbroad as drafted. During the
`meet and confer process, RJR had indicated it might propose stipulated language to eliminate this
`MIL. RJR ultimately did not, but we remain open to finding a way to conserve judicial resources. To
`that end, PMI/Altria proposes that the parties agree to not (i) reference PMP’s claim for injunctive
`relief in front of the jury and (ii) present argument, evidence, or testimony solely related to PMP’s
`claim for injunctive relief. This proposal would moot RJR’s MIL #4.
`RJR’s MIL #5: RJR seeks to exclude “all evidence and argument regarding any request for or alleged
`entitlement to an award of enhanced damages or attorneys’ fees.” Dkt. 832 at 9. PMI/Altria is
`willing to agree to this motion, so long as it is mutual and makes clear that it does not render
`otherwise relevant evidence inadmissible. PMI/Altria therefore proposes that the parties agree to
`the following stipulation: “No party will reference any request for costs, attorneys’ fees, or enhanced
`damages at trial. This agreement does not preclude any party from presenting otherwise relevant
`evidence, including but not limited to evidence related to damages and willfulness.” This proposal
`would moot RJR’s MIL #5.
`
`RJR’s MIL #6: Reynolds seeks to exclude “any argument, evidence, or testimony regarding Reynolds
`not obtaining or relying on an opinion of counsel or suggesting that Reynolds should have obtained
`one (and any other adverse inference related to absence of an opinion of counsel).” Dkt. 839 at 6.
`As discussed during the meet and confer process, we would like Reynolds to confirm that it will not
`present certain argument, evidence, or testimony at trial, as described below. We don’t believe
`Reynolds was willing to give that confirmation, which is necessary to evaluate the need for this
`motion. To streamline the issues and avoid unnecessary briefing, please confirm Reynolds will not
`present argument, evidence, or testimony at trial suggesting that Reynolds:
`
`1. Relied on legal advice or an opinion of counsel letter for the asserted patents, including to
`argue alleged non-infringement, invalidity, or a lack of willfulness;
`2. Had, after being on notice of an asserted patent, a good faith belief that it was not infringing
`that patent; and
`3. Implemented processes or procedures to avoid infringing any of the asserted patents;
`
`If Reynolds confirms that it will not make any of the above arguments at trial, we may be able to
`resolve Reynolds’ MIL #6.
`
`RJR’s MIL #10: RJR seeks to exclude introducing “any evidence or argument that RJR infringed or has
`been accused of infringing third-party patents” with a carve out regarding the Fontem litigation.
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 972-4 Filed 02/11/22 Page 3 of 3 PageID# 27519
`
`During the meet and confer process, RJR had indicated it might propose stipulated language to
`eliminate this MIL. RJR ultimately did not, but we remain open to finding a way to conserve judicial
`resources. To that end, we propose the following stipulation: “No party will present argument,
`evidence, or testimony that Reynolds infringed or has been accused of infringing a patent owned by
`a third-party, other than a Fontem entity. For clarity, this agreement does not preclude any party
`from presenting argument, evidence, or testimony relating to PMI/Altria’s infringement allegations
`in this case or Fontem’s infringements allegations against Reynolds in their prior litigations.” This
`proposal would moot RJR’s MIL #10.
`
`Please let us know RJR’s position on the above MILs by 5 pm ET on Thursday.
`
`Regards,
`
`Jared S. Schubert
`
`LATHAM & WATKINS LLP
`1271 Avenue of the Americas
`New York, NY 10020
`Direct Dial: +1.212.906.4637
`Email: jared.schubert@lw.com
`https://www.lw.com
`
`
`
`