Opinion
Civil Action No. 99-2496 (GK).
July 22, 2005
ORDER #988
This Order relates to the following documents:
(i) JD-055501: 3003750356/0375: PM USA 2001 Performance Summary: Confidential.
(ii) JD-055502: 3005199264/9284: PM USA 2002 Performance Summary: Confidential
(iii) JD-055503: 3005199184/9206: PM USA 2003 and 2001-2003 Performance Summary: Confidential
(iv) JD-055504: 3005209898/9922: PM USA 2004 Performance Summary: Confidential and Highly Sensitive/Cat. I.
Upon consideration of the Philip Morris Defendants' Amended and Supplemental Notice of Assertions of Protection at Trial of Specified Trial Exhibits — JD-055501, JD-055502, JD-055503, and JD-055504, the Declaration of William F. Gifford, Jr., Vice President for the Market Information Department of Philip Morris USA Inc., the Declaration of Pascal Fernandez, Vice President of Marketing for Philip Morris USA Inc., the entire record herein, and on 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 exhibits as Confidential pursuant to this Court's Order #7 and/or as Highly Sensitive pursuant to Order #36. 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." 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.
2. As evidence that the documents listed above are Confidential and/or Highly Sensitive, the Philip Morris Defendants have submitted the Declarations of William F. Gifford, Jr., Vice President for the Market Information Department of Philip Morris USA Inc., and Pascal Fernandez, Vice President of Marketing, Philip Morris USA Inc. ("PM USA").
3. These documents consist of PM USA's performance summaries for the years 2001 through 2004. They divulge Confidential Information about PM USA's business strategies and financial position. For example, each of these exhibits discloses details of PM USA's income from operations and free cash flow, which is non-public information that is reported only to PM USA's parent company and is not itemized on the parent company's consolidated filings. Additionally, each of these exhibits discloses non-public information about PM USA's currently applicable business strategies. Public disclosure of this information would likely constitute a competitive disadvantage for PM USA, because it would allow its competitors to better anticipate PM USA's business strategy.
4. Additionally, one of these documents (JD-055504) discloses non-public information about PM USA's marketing and product development initiatives and products not yet introduced into the marketplace. This information would allow PM USA's competitors to develop similar products or better market their already existing products to undermine the commercial success of PM USA's new products. Release of these documents to PM USA's competitors would cause irreparable competitive injury.
5. For these reasons, these documents contain Confidential Information pursuant to Order #7 and Highly Sensitive information pursuant to Order #36.
6. In determining the proper restriction on the use of these documents and transcripts at trial, the Court will take into consideration (a) the need for public access to the information at issue; (b) the extent to which the public has had prior access to information; (c) the fact that no party has objected to disclosure and the identity of that party; (d) the strength of the property and privacy interests involved; (e) the possibility of prejudice to those opposing disclosure; and (f) the purposes for which the Information is introduced.
7. Applying these considerations, the Court finds the fact that Philip Morris USA has kept these documents confidential, the fact that it has objected to disclosure during the course of this litigation, the strength of its interest in the confidentiality of these documents, and the prejudice it will suffer if these documents and testimony are disclosed, outweigh any need for public access to these documents.
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 and Highly Sensitive documents, and the transcript of the Trial Proceedings during which this Confidential and Highly Sensitive information is discussed shall be marked and handled in accordance with Order #638, ¶ 5(e).
2. All provisions of Order #638 with respect to Highly Sensitive documents (such as, for example, those provisions concerning their storage and transportation) shall be observed with respect to the documents listed above.