Case 1:20-cv-00393-LO-TCB Document 985 Filed 02/11/22 Page 1 of 6 PageID# 27624
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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.
`
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`Plaintiffs.
`
`Civil Action No. 1:20-cv-393-LO-TCB
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`
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`MEMORANDUM IN SUPPORT OF PMI/ALTRIA’S MOTION FOR
`LEAVE TO FILE DOCUMENTS UNDER SEAL
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`Pursuant to Local Civil Rule 5(C), Altria Client Services, LLC, Philip Morris USA Inc.,
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`and Philip Morris Products S.A. (collectively, “PMI/Altria”) respectfully move the Court for leave
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`to file Exhibits A-E to their Opposition to RJR’s Motion in Limine No. 7 under seal.
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`All of the materials PMI/Altria seek to file under seal have been designated by at least one
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`party as confidential under the stipulated protective order.
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`I.
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`DESCRIPTION OF MATERIALS SOUGHT TO BE SEALED
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`PMI/Altria respectfully seek leave to file the following documents under seal:
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`• Exhibit A to PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7, which is
`excerpts from the confidential correspondence between the parties.
`• Exhibit B to PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7, which are
`excerpts from the confidential Amended and Supplemental Opening Expert Report
`of Paul K. Meyer.
`• Exhibit C to PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7, which are
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`Case 1:20-cv-00393-LO-TCB Document 985 Filed 02/11/22 Page 2 of 6 PageID# 27625
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`excerpts from the confidential Supplemental Opening Expert Report of Joseph C.
`McAlexander III Regarding U.S. Patent Numbers 6,803,545 and 10,420,374.
`• Exhibit D to PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7, which are
`excerpts from the confidential deposition transcript of Joseph C. McAlexander III.
`• Exhibit E to PMI/Altria’s Opposition to RJR’s Motion in Limine No. 7, which are
`excerpts from the confidential Supplemental Rebuttal Expert Report of Joseph C.
`McAlexander III Regarding Validity of U.S. Patent Numbers: 6,803,545 and
`10,420,374.
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`II.
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`ARGUMENT
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`Although there is a general presumption that the public has the right to access documents
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`in the files of the courts, this presumption may be overcome “if the public’s right of access is
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`outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000)
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`(citation omitted); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). To
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`determine whether the interests in sealing the records outweigh the public’s right of access, a court
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`must follow a three-step process: (1) provide public notice of the request to seal and allow
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`interested parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing
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`the documents; and (3) articulate specific reasons and factual findings supporting its decision to
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`seal. Ashcraft, 218 F.3d at 302; Adams v. Object Innovation, Inc., No. 11-cv-00272-REP-DWD,
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`2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011), report and recommendation adopted, 2012 WL
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`135428 (E.D. Va. Jan. 17, 2012). All three requirements are satisfied here.
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`First, the public has received notice of the request to seal and will have a reasonable
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`opportunity to object. In accordance with Local Civil Rule 5 procedures, this sealing motion was
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`publicly docketed, satisfying the first requirement. Counterclaim Defendants will have an
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`opportunity to respond, and once the “public has had ample opportunity to object” to PMP/Altria’s
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`motion and “the Court has received no objections,” the first Ashcraft requirement may be deemed
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`satisfied. See GTSI Corp. v. Wildflower Int’l, Inc., No. 09-cv-00123-JCC, 2009 WL 1248114, at
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`2
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`Case 1:20-cv-00393-LO-TCB Document 985 Filed 02/11/22 Page 3 of 6 PageID# 27626
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`*9 (E.D. Va. Apr. 30, 2009); U.S. ex rel. Carter v. Halliburton Co., No. 10-cv-00864-JCC-TCB,
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`2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the
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`request to seal that allowed interested parties a reasonable opportunity to object—nearly two
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`weeks.”).
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`Second, PMP/Altria seeks to seal and to redact from the public record only information
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`that the parties must keep confidential by the stipulated protective order. The exhibits filed under
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`seal contain competitively sensitive information the disclosure of which would cause harm. This
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`selective and narrow protection of confidential material constitutes “the least drastic method of
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`shielding the information at issue.” Adams, 2011 WL 7042224, at *4. The public has no legitimate
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`interest in information that is confidential to PMP/Altria and Counterclaim Defendants. See
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`Adams, 2011 WL 7042224, at *4 (“[T]here is no legitimate public interest in disclosing the
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`proprietary and confidential information of [the defendant] . . . and disclosure to the public could
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`result in significant damage to the company.”). The information that PMP/Altria seeks to seal and
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`redact includes confidential, proprietary, and competitively sensitive business information of
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`PMP/Altria, Counterclaim Defendants, and/or third parties, each of which could face harm if such
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`information were to be released publicly.
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`Third, there is support for filing Exhibits A-E to PMI/Altria’s Opposition to RJR’s Motion
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`in Limine No. 7 under seal. As an initial matter, the stipulated protective order requires that this
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`information remain confidential. The exhibits filed under seal contain competitively sensitive
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`business information. Sealing these materials is therefore proper because the public’s interest in
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`access is outweighed by a party’s interest in “preserving confidentiality” of limited amounts of
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`confidential information that is “normally unavailable to the public.” Flexible Benefits Council v.
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`Feltman, No. 08-cv-00371-JCC, 2008 WL 4924711, at *1; U.S. ex rel. Carter, 2011 WL 2077799,
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`3
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`at *3.
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`III. CONCLUSION
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`PMI/Altria respectfully request that the Court grant this Motion and enter the attached
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`proposed Order.
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`Dated: February 11, 2022
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`Respectfully submitted,
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`
`
`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`Jamie Underwood
`jamie.underwood@lw.com (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`4
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`Case 1:20-cv-00393-LO-TCB Document 985 Filed 02/11/22 Page 5 of 6 PageID# 27628
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`Counsel for Plaintiffs Altria Client Services
`LLC, Philip Morris USA Inc., and Philip
`Morris Products S.A.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 985 Filed 02/11/22 Page 6 of 6 PageID# 27629
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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/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
`
`
`Counsel for Plaintiffs Altria Client Services
`LLC, Philip Morris USA Inc., and Philip
`Morris Products S.A.
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`6
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