Opinion
Civil Action No. 99-2496 (GK).
November 5, 2004
This order relates to the following documents:
(i) U.S. 45276: 2079175807/5977 (Presentation entitled "New Technology Planning Meeting 2001 Budget" at Annual Planning Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(ii) JD-050010: PM3000184536/4545 (Nov. 19, 2003 Presentation entitled "Study Concept Inhalation Toxicity Project EHCSS Series K (9575-72) (Mark III)" at the PM Research Laboratories Weekly Toxicity Meeting. Confidential document containing Highly Sensitive (Cat. I) material.
(iii) JD-050068: PM3000351155/1162 (Sep. 2002 BDO Monthly Report). Confidential document containing Highly Sensitive (Cat. I) material.
(iv) JD-050236: PM3000172421/2445 (Presentation entitled "Process to Allow Reduced Exposure Product Claims" to Dec. 9-10, 2002 Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
Upon consideration of the Philip Morris Defendants' Amended and Supplemental Notice of Protection at Trial of Specified Trial Exhibits and Designated Prior Testimony, the Declaration of Richard H. Cox, Senior Vice-President for the Research and Science Division of Philip Morris USA ("PM USA"), the entire record herein, and this Court's in camera review of the documents listed above, the Court hereby FINDS that:
1. The Philip Morris Defendants have designated the above-listed documents as Confidential pursuant to this Court's Order # 7 and also as containing Highly Sensitive information pursuant to this Court's Order # 36. Order # 7 defines "Confidential" as "any such information, document or material" that
(a) derives independent economic value, actual or potential, from not being generally known to the public and to other persons who can obtain economic value from its disclosure and use; and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Order # 36 defines "Highly Sensitive" as "material or information which is so proprietary or competitively sensitive that its disclosure to a competitor would cause irreparable competitive injury."
2. As evidence that the documents listed above are Confidential and also contain Highly Sensitive information, the Philip Morris Defendants have submitted the Declaration of Richard H. Cox, currently Senior Vice-President of the Research and Science Division of PM USA, and formerly PM USA's Vice-President of the Research Division and Vice-President of the Scientific Technical Services Division.
3. These documents relate to PM USA's development of the Electronically Heated Cigarette Smoking System ("EHCSS"). Document (i) contains detailed information relating to (a) recent budgets for a version of EHCSS not yet released, (b) volume forecasts for different projects, (c) the costs of developing specific unique attributes for a version of EHCSS not yet released, (d) information about what third party vendors supply or research, and (e) specific and unique attributes of that version of EHCSS not yet released. Documents (ii) and (iii) contain detailed information relating to specific and unique attributes of a version of EHCSS not yet released. Document (iv) outlines how PM USA may be able to make reduced exposure product claims regarding a version of EHCSS not yet released based on the principles described by IOM.
4. The information in these documents would provide PM USA's competitors with a roadmap for the development of similar products and also an insight into the methods employed at PM USA for developing new technologies and products. If this information were known to the company's competitors, they could use PM USA's research and development results to develop and release a competitive product, develop an effective countermarketing strategy, and/or act in other ways to jeopardize PM USA's investment and frustrate PM USA's competitive expectations from these products. This would result in irreparable competitive injury to PM USA.
5. These documents are therefore Confidential pursuant to Order # 7 and also contain Highly Sensitive information pursuant to Order # 36.
6. In determining the proper restriction on the use of these documents at trial, the Court has taken into consideration (i) the need for public access to the Information at issue; (ii) the extent to which the public has had prior access to the Information; (iii) the fact that a party has objected to disclosure and the identity of that party; (iv) the strength of the property and privacy interests involved; (v) the possibility of prejudice to those opposing disclosure; and (vi) the purposes for which the Information is introduced.
7. Applying these considerations, the Court finds that PM USA (a) has kept these documents confidential, (b) has objected to disclosure during the course of this litigation, (c) has strong interest in the confidentiality of these documents, and (d) will suffer prejudice that outweighs any need for public access to these documents if they are disclosed.
It is therefore ORDERED that:
1. At the time that any of these documents is to be used at trial or the information in these documents is to be described during the course of trial, the proceedings shall be closed to all persons but those permitted under Order # 638 to view Confidential documents and/or Highly Sensitive information, depending on which portion(s) of the document(s) is to be considered and the transcript of the Trial Proceedings during which this Confidential and/or Highly Sensitive information was discussed shall be marked and handled in accordance with Order # 638 ¶ 5(e).
2. All the provisions of Order # 638 with respect to Confidential and/or Highly Sensitive documents (such as, for example, those provisions concerning their storage and transportation) shall be observed with respect to the documents listed above.