WHEREAS, the plaintiffs, Altria Client Services LLC and U.S. Smokeless Tobacco Company LLC (together, “Plaintiffs”), seek to amend the complaint filed in this action to add an additional defendant; and WHEREAS, the defendant, R.J. Reynolds Vapor Company (“Defendant”), consents to the proposed amended pleading; IT IS HEREBY ORDERED that the Motion (Docket Entry 43) is GRANTED and that:

Plaintiffs may file the proposed First Amended Complaint (see Docket Entry 42-1) no later than five (5) days from the date of this Order; and

The response to the amended complaint (by motion, answer, or otherwise) shall be due 21 days after the filing of the First Amended Complaint.

SO ORDERED this the 4th day of January 2021.

Joe L. Webster United States Magistrate Judge

Through counsel and pursuant to Local Rule 5.4, Defendants R.J. Reynolds Vapor Company and Modoral Brands, Inc. (collectively, “Reynolds”), respectfully requests that the Court seal confidential portions of Reynolds’s Opposition to Plaintiffs’ Supplemental Brief In Support of its Motion for Partial Summary Judgment and accompanying Exhibit 1 (the “Confidential Information”).

In support of this Motion, Reynolds respectfully submits the following: Reynolds’s Opposition refers to certain information that third-party JUUL Labs, Inc. (“JLI”) has indicated it considers to be sensitive material.

Reynolds included the Confidential Information—which is redacted in the public version of its Opposition—based on JLI’s marking of its entire corporate deposition transcript as “Highly Confidential Under Protective Order.” Accompanying Exhibit 1 to Reynolds’s Opposition is the Supplemental Rebuttal Expert Report of Joseph C. McAlexander III Concerning Validity of U.S. Patent Nos. 10,299,517, 10,485,269, 10,492,541, and 10,588,357.

WHEREFORE, Reynolds respectfully requests that the Court grant this Motion and seal the Confidential Information, subject to third-party JLI making the showing required by L.R.

Special Appearance Under Local Rule 83.1(d) * Counsel for Defendants and Counterclaim Plaintiffs, R.J. Reynolds Vapor Company and Modoral Brands, Inc.

It appearing to the Court that counsel for the parties have selected JONATHAN R. HARKAVY, Esquire, by agreement, as their mediator; IT IS ORDERED, pursuant to Local Rule 83.9d(a), that JONATHAN R. HARKAVY, is appointed mediator in the above-entitled action.

IT IS FURTHER ORDERED, pursuant to Local Rule 83.9e(b), that the mediator shall confer with the parties regarding scheduling of the mediated settlement conference, determine the place and time of the conference, and give notice to the parties.

FURTHER, when the mediated settlement conference is completed, the mediator shall submit the Report of Mediator to the Clerk, pursuant to Local Rule 83.9f.

Let copies of this order be sent to counsel for the parties and to the mediator.

This, the 1st day of December, 2020.

Pursuant to the Court’s Docket Notices on January 3, 2023 (Dkt. 562-572), Plaintiff Altria Client Services LLC, through its undersigned counsel, hereby gives notice of its intention on or before January 27, 2023 to request redaction of all transcripts of pretrial proceedings held on August 22, 2022 through August 26, 2022, and all transcripts of jury trial proceedings held on August 29, 2022 through September 6, 2022.

Altria’s redactions will be consistent with the Parties’ previously filed motions to seal confidential pretrial and trial testimony (Dkt. 482 and 484).

Respectfully submitted this 10th day of January 2023.

Such Confidential Business Information, whether submitted in writing or in oral testimony, shall constitute “Protected Material” and shall be treated in accordance with the terms of this Protective Order.

any person retained by a party or its counsel as an independent consultant or expert (including staff assisting the expert): (i) who is not an employee of any party or of any domestic or foreign manufacturer, wholesaler, retailer, or distributor of the products, devices or component parts which are the subject of this litigation; (ii) who has read this Order and executed the Commitment to be Bound by Protective Order attached hereto as “Exhibit A”; and (iii) as to whom the procedures set forth in paragraph 8 have been followed;

Final Disposition: Within sixty (60) days after final disposition of this litigation (which is defined as the later of: (a) dismissal of all claims and defenses in this action, with or without prejudice; and (b) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law), each receiving party shall assemble and return to the disclosing party all items containing Protected Material, including all copies of such matter which may have been made.

Notwithstanding this provision, counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material.

However, nothing shall prohibit a party from making a request for a privilege log as to a specific custodian or issue upon a showing of good cause.

As discussed in the hearing, both parties agree that discovery should be commenced on a modified exceptional case-management track established in Local Rule 26.1, however Defendants propose an extended schedule to account for the number of patents at issue in this case, the potential pursuit of discovery of non-U.S. prior art products, and the general gravity of the Covid-19 pandemic.

1 The Parties agree that they do not at this time anticipate presenting live testimony at the claim construction hearing.

Rule 30(b)(6) designees and knowledgeable employees of each Party will be made available in the city where they live or do business without the need for a subpoena.

After these dates, the Court will consider, inter alia, whether the granting of leave would delay trial.

- Production of Samples: The parties agree to work cooperatively in good faith to exchange product samples, and specifically requested components thereof, in a timely manner so that counsel and/or experts have sufficient time to analyze them under the applicable schedule.

Third, Reynolds states that, “[i]n a segment of Figlar’s deposition played at trial, Altria’s counsel read from Reynolds’s corporate policy,” incorrectly implying that Altria designated this testimony.

But this is insufficient to authenticate the date without “a certification from [a Facebook] custodian of records that would support a finding that the [post] constitutes admissible evidence.” See Ratner v. Kohler, No. 17-cv-00542, 2018 WL 1055528, at *11 (D. Haw.

Rather, one of Reynolds’s cited cases cautions that, while post-priority date evidence may be relevant to the state of the art, “defendants may not argue at trial that these references form part of the prior art.” Netscape Commc’ns Corp. v. ValueClick, Inc., 707 F. Supp.

Co., LLC v. Powell, 607 F. App’x 238, 244 (4th Cir. 2015) (“[W]e find that RFT failed to preserve a number of the errors it asserts on appeal because either the district court’s ruling or RFT’s objection thereto is absent from the record.”).

There Has Been No Miscarriage of Justice Reynolds claims that “Altria’s comparison between Alto’s total revenue and its requested royalty skewed the jury’s damages verdict by impermissibly suggesting, without support, that Altria’s patents contributed to the entire market value of Alto.” Br.

Pursuant to Local Rule 5.4 and as the party contending confidentiality of certain portions of Exhibit 1, Plaintiff Altria Client Services LLC, through its undersigned counsel, hereby submits this Brief in support of Defendant’s Motion to Seal (Dkt No. 506).

A court considering a motion to maintain documents under seal must first determine the nature of the information and the public’s right to access.

“The right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment.” Wash. Post, 386 F.3d at 575.

2d at 656 (same); Adjabeng v. GlaxoSmithKline, LLC, No. 1:12-CV-568, 2014 WL 459851, at *3 (M.D.N.C. Feb. 5, 2014) (“In the absence of an improper purpose and where there are no countervailing interests, sealing confidential business information is appropriate.”); Woven Elecs.

For the forgoing reasons, Plaintiff respectfully requests that the Court grant Defendant’s Motion to Seal filed on November 2, 2022 (Dkt. No. 506) and enter the Proposed Order.