Opinion
Civil Action No. 99-2496 (GK).
November 8, 2004
This order relates to the following documents:
(i) U.S. 22798: 2082789573A/9591 (Jan. 2001 Presentation entitled "SCoR Program Execution" for Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(ii) U.S. 22799: 2082790122/0134 (Apr. 5, 2001 Presentation for Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(iii) U.S. 23045: 2085526937/6954 (Dec. 19, 2001 Presentation to Senior Management). Confidential document containing Highly Sensitive (Cat. I) material. Duplicate of U.S. 77916.
(iv) U.S. 25109: 2082621005/1018 (Presentation to Reduction Team). Confidential.
(v) U.S. 45430: 2081697199/7213 (Apr. 4, 2001 Presentation entitled "New Technology Research"). Confidential.
(vi) U.S. 45431: 2081697263/7288 (Nov. 2, 2000 Presentation entitled "Development of Reduced Risk Products" at Strategic Planning Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(vii) U.S. 45440: 2081700146/0165 (Apr. 18, 2001 Presentation). Confidential document containing Highly Sensitive (Cat. I) material.
(viii) U.S. 45775: 2086117486/7491 (Selective Filtration Presentation). Confidential.
(ix) U.S. 45780: 2086117655/7664 (Selective Filtration Objectives Presentation). Confidential.
(x) U.S. 45800: 2086117714/7724 (Jul. 13, 1999 Presentation entitled "Selective Filtration Update"). Confidential.
(xi) U.S. 45822: 2086135329/5388 (Nov. 10, 1999 Presentation). Confidential.
(xii) U.S. 58907: LB0037507/7530 (Apr. 4, 2001 Presentation entitled "SCoR Program Objective"). Confidential document containing Highly Sensitive (Cat. I) material.
(xiii) U.S. 58919: LB0038119/8128 (Apr. 4, 2001 Presentation entitled "SCoR Program Objective"). Confidential document containing Highly Sensitive (Cat. I) material.
(xiv) U.S. 70722: 2082361514/1528 (Jan. 2001 Presentation to Scientific Advisory Board). Confidential document containing Highly Sensitive (Cat. I) material.
(xv) U.S. 70724: 2082361529/1540 (Jan. 18, 2001 Presentation entitled "Design Considerations for Testing of SCoR Prototypes"). Confidential document containing Highly Sensitive (Cat. I) material.
(xvi) U.S. 77916: 2085526937/6954 (Dec. 19, 2001 Presentation to Senior Management). Confidential document containing Highly Sensitive (Cat. I) material. Duplicate of U.S. 23045.
(xvii) JD-050124: 2079170461/0470 (Apr. 4, 2001 Presentation). Confidential document containing Highly Sensitive (Cat. I) material.
(xviii) JD-050127: 2085542652/2666 (Dec. 7, 2001 Presentation entitled "SCoR 4 Program Update"). Confidential document containing Highly Sensitive (Cat. I) material. Duplicate of JD-050237.
(xix) JD-050208: 3000831959/1993 Confidential document containing Highly Sensitive (Cat. I) material.
(xx) JD-050209: 2082007660/7674 (Apr. 4, 2001 Presentation entitled "SCoR Blend Development: TSNA Objective" at the Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(xxi) JD-050210: 2085796069/6083 (Nov. 30, 2001 Presentation entitled "SCoR External Communication"). Confidential.
(xxii) JD-050231: 3000172279/2293 (May 17, 2004 Presentation entitled "SCoR Future Versions" presented to Altria Management). Confidential document containing Highly Sensitive (Cat. I) material.
(xxiii) JD-050238: 3000172578/2589 (Jun. 10, 2003 Presentation at New Products Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(xxiv) JD-050239: 3000172446/2457 (Jun 11, 2003 Presentation entitled "Introduction to Non-Clinical Testing" at Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(xxv) JD-050240: 3000172528/2555 Confidential document containing Highly Sensitive (Cat. I) material.
(xxvi) JD-050241: 3000172564/2577 (Jun. 10, 2003 Presentation entitled "Smoke Chemistry Tracking" at Scientific Advisory Board Meeting). Confidential document containing Highly Sensitive (Cat. I) material.
(xxvii) JD-050242: 300172625/2637 Confidential document containing Highly Sensitive (Cat. I) material.
(xxviii) JD-050243: 3000172556/2563 Confidential document containing Highly Sensitive (Cat. I) material.
(xxix) JD-050245: 3000172458/2519 Confidential document containing Highly Sensitive (Cat. I) material.
(xxx) JD-050244: PM3000172520/2527 Confidential document containing Highly Sensitive (Cat. I) material.
(xxxi) JD-050128: 2085796126/6165 (PM USA Presentation to PMI entitled "Background for Exposure Studies for SCoR" at Dec. 7, 2001 EMT/LRP Meeting) Confidential.
(xxxii) JD-050232: PM3000172257/2278 (Presentation entitled "SCoR Version C Test Market Plan"). 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 the absence of Opposition, 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 certain documents 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 that certain documents 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 new products. The documents listed above are presentations related to the Smoke Constituent Reduction ("SCoR") Program in which PM USA has invested over one billion dollars to date. The first SCoR product is scheduled for launch in the near future. These documents contain detailed information about the SCoR product concerning such matters as PM USA's product launch schedule, the design attributes of the product, detailed development costs and budgets, specific smoke constituents released, flavor components, proposals for exposure studies, and PM USA's output capacity.
4. The information in these documents would provide PM USA's competitors with a detailed blueprint for a new product not yet released on the market. If this information were known to the company's competitors, they could develop and release a similar product based on PM USA's research and development expenditures and efforts, develop an effective counter-marketing 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 Philip Morris USA.
5. These documents are therefore Confidential pursuant to Order # 7. In addition, documents (i) through (iii), (vi), (vii), (xii) through (xx), (xxii) through (xxx), and (xxxii) 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 no 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 document(s) is to be considered, and for those documents containing Highly Sensitive information, depending which portion(s) of the document(s) is to be considered and the transcript of the Trial Proceeding 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.