20031121Protective Order No 29384.pdf

Office of the Secretary
Service Date
November 21 2003
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IPUC RESPONSE TO FCC)
ORDER ON REVIEW OF SECTION 251
UNBUNDLING OBLIGATIONS OF
INCUMBENT LOCAL EXCHANGE CARRIERS
(CC DOCKET NO. 01-338). CASE NO. GNR- T -03-
NINE-MONTH REVIEW OF ECONOMIC AND
OPERATIONAL IMPAIRMENT REGARDING
ACCESS TO SPECIFIC UNES.
PROTECTIVE
ORDER NO. 29384
To facilitate the disclosure of documents and information during the course of this
proceeding and to protect confidential information, the Commission now issues this Protective
Order ("Order ) to govern these proceedings.1. (a) Confidential Information.All documents, data, studies and other materials
furnished pursuant to any requests for information, subpoenas or other modes of discovery
(formal or informal), including depositions, and other requests for information, that are claimed
to be proprietary or confidential (herein referred to as "Confidential Information ), shall be so
marked by the providing party by stamping the same with a "Confidential" designation. In
addition, all notes or other materials that refer to, derive from, or otherwise contain parts of the
Confidential Information may be marked by the receiving party as Confidential Information.
Access to and review of Confidential Information shall be controlled by the terms of this Order.
(b) Use of Confidential Information -- Proceedings. All persons who may be
entitled to review, or who are afforded access to any Confidential Information by reason of this
Order shall neither use nor disclose the Confidential Information for purposes of business or
competition, or any purpose other than the purpose of preparation for and conduct of proceedings
in the above-captioned docket or before the Federal Communications Commission ("FCC"), and
all subsequent appeals ("TRO Proceedings ), and shall keep the Confidential Information secure
as confidential or proprietary information and in accordance with the purposes, intent and
requirements of this Order.
PROTECTIVE ORDER NO. 29384
(c)Persons Entitled to Review.Each party that receIves Confidential
Information pursuant to this Order must limit access to such Confidential Information to (1)
attorneys employed or retained by the party in TRO Proceedings and the attorneys' staff; (2)
experts, consultants and advisors who need access to the material to assist the party in TRO
Proceedings; (3) only those employees of the party who are directly involved in these TRO
Proceedings, provided that counsel for the party represents that no such employee is engaged in
the sale or marketing of that party s products or services. In addition, access to Confidential
Information may be provided to Commissioners and Commission Staff members and employees
of the Commission to whom disclosure is necessary. Where Commission Staff acts as an
advocate in a contested case or adversarial role, disclosure of both Confidential Information and
Highly Confidential Information to Staff members and consultants employed by the Staff shall
be under the same terms and conditions as described herein for parties.
(d)Nondisclosure Agreement.Any party, person, or entity that receives
Confidential Information pursuant to this Order shall not disclose such Confidential Information
to any person, except persons who are described in section 1 (c) above and who have signed a
nondisclosure agreement in the form which is attached hereto and incorporated herein as Exhibit
A." Court reporters shall also be required to sign an Exhibit "A" and comply with the terms of
this Order.
The nondisclosure agreement (Exhibit "shall reqUIre the person(s) to whom
disclosure is to be made to read a copy of this Protective Order and to certify in writing that they
have reviewed the same and have consented to be bound by its terms. The agreement shall
contain the signatory s full name, employer, job title and job description, business address and
the name of the party with whom the signatory is associated. Such agreement shall be delivered
to counsel for the providing party before disclosure is made, and if no objection thereto is
registered to the Commission within three (3) business days, then disclosure shall follow. An
attorney who makes Confidential Information available to any person listed in subsection (c)
above shall be responsible for having each such person execute an original of Exhibit "A" and a
copy of all such signed Exhibit "s shall be circulated to all other counsel of record promptly
after execution.
(a)Notes.Limited notes regarding Confidential Information may be taken by
counsel and experts for the express purpose of preparing pleadings, cross-examinations, briefs
PROTECTIVE ORDER NO. 29384
motions and argument in connection with this proceeding, or in the case of persons designated in
paragraph l(c) of this Protective Order, to prepare for participation in this proceeding. Such
notes shall then be treated as Confidential Information for purposes of this Order, and shall be
destroyed after the final settlement or conclusion of the TRO Proceedings in accordance with
subsection 2(b) below.
(b)Return All notes, to the extent they contain Confidential Information and
are protected by the attorney-client privilege or the work product doctrine, shall be destroyed
after the final settlement or conclusion of the TRO Proceedings. The party destroying such
Confidential Information shall advise the providing party of that fact within a reasonable time
from the date of destruction.
3. Highly Confidential Information:Any person, whether a party or non-party, may
designate certain competitively sensitive Confidential Information as "Highly Confidential
Information" if it determines in good faith that it would be competitively disadvantaged by the
disclosure of such information to its competitors. Highly Confidential Information includes, but
is not limited to, documents, pleadings, briefs and appropriate portions of deposition transcripts
which contain information regarding the market share of, number of access lines served by, or
number of customers receiving a specified type of service from a particular provider or other
information that relates to a particular provider s network facility location detail, revenues, costs
and marketing, business planning or business strategies.
Parties must scrutinize carefully responsive documents and information and limit their
designations as Highly Confidential Information to information that truly might impose a serious
business risk if disseminated without the heightened protections provided in this section. The
first page and individual pages of a document determined in good faith to include Highly
Confidential Information must be marked by a stamp that reads:
HIGHL Y CONFIDENTIAL-USE RESTRICTED PER PROTECTNE
ORDER IN DOCKET NO. GNR-O3-23"
Placing a "Highly Confidential" stamp on the first page of a document indicates only that
one or more pages contain Highly Confidential Information and will not serve to protect the
entire contents of a multi-page document.Each page that contains Highly Confidential
Information must be marked separately to indicate Highly Confidential Information, even where
that information has been redacted. The unredacted versions of each page containing Highly
PROTECTIVE ORDER NO. 29384
Confidential Information, and provided under seal, should be submitted on paper distinct in color
from non-confidential information and "Confidential Information" described in section 1 of this
Protective Order.
Parties seeking disclosure of Highly Confidential Information must designate the
person(s) to whom they would like the Highly Confidential Information disclosed in advance of
disclosure by the providing party. Such designation may occur through the submission of
Exhibit "B" of the non-disclosure agreement, which agreement is identified in section 1 (d).
Parties seeking disclosure of Highly Confidential Information shall not designate more than (1) a
reasonable number of in-house attorneys who have direct responsibility for matters relating to
Highly Confidential Information; (2) two in-house experts; and (3) a reasonable number of
outside counsel and outside experts to review materials marked as "Highly Confidential."
Disclosure of Highly Confidential Information to Commissioners and Commission Staff
members shall be limited to persons to whom disclosure is necessary. The Exhibit "B" also shall
describe in detail the job duties or responsibilities of the person being designated to see Highly
Confidential Information and the person s role in the proceeding. Highly Confidential
Information may not be disclosed to persons engaged in the development, planning, marketing or
selling of retail or wholesale services for the purposes of any party competing with or against any
other party, strategic or business decision making, non-regulatory strategic or business planning
or procurement on behalf of the receiving party.
Any party providing either Confidential Information or Highly Confidential Information
may object to the designation of any individual as a person who may review Confidential
Information and/or Highly Confidential Information. Such objection shall be made in writing to
counsel submitting the challenged individual's Exhibit "A" or "B" within three (3) business days
after receiving the challenged individual's signed Exhibit "A" or ". Any such objection must
demonstrate good cause to exclude the challenged individual from the review of the Confidential
Information or Highly Confidential Information. Written response to any objection shall be
made within three (3) business days after receipt of an objection. If, after receiving a written
response to a party s objection, the objecting party still objects to disclosure of either
Confidential Information or Highly Confidential Information to the challenged individual, the
party may ask the Commission to determine whether Confidential Information or Highly
Confidential Information must be disclosed to the challenged individual.
PROTECTIVE ORDER NO. 29384
Copies of Highly Confidential Information may be provided to the in-house attorneys
outside counsel and outside experts who have signed Exhibit ". The in-house experts who
have signed Exhibit "B" may inspect, review and make notes from the in-house attorney s copies
of Highly Confidential Information.
Persons authorized to review the Highly Confidential Information will maintain the
documents and any notes reflecting their contents in a secure location to which only designated
counsel and experts have access. No additional copies will be made, except for use during
hearings and then such disclosure and copies shall be subject to the provisions of Section 6. Any
testimony or exhibits prepared that reflect Highly Confidential Information must be maintained
in the secure location until removed to the hearing room for production under seal. Unless
specifically addressed in this section, all other sections of this Protective Order applicable to
Confidential Information also apply to Highly Confidential Information.
4. Objections to Admissibility.The furnishing of any document, data, study or other
materials pursuant to this Protective Order shall in no way limit the right of the providing party
to object to its relevance or admissibility in proceedings before this Commission.
5. Challenge to Confidentiality.This Order establishes a procedure for the
expeditious handling of information that a party claims is Confidential or Highly Confidential. It
shall not be construed as an agreement or ruling on the confidentiality of any document. Any
party may challenge the characterization of any information, document, data or study claimed by
the providing party to be confidential in the following manner:
(a) A party seeking to challenge the confidentiality of any materials pursuant
to this Order shall first contact counsel for the providing party and attempt to resolve any
differences by stipulation;
(b)In the event that the parties cannot agree as to the character of the
information challenged, any party challenging the confidentiality shall do so by appropriate
pleading. This pleading shall:
(1) Designate the document, transcript or other material challenged in
a manner that will specifically isolate the challenged material from other material claimed as
confidential; and
PROTECTIVE ORDER NO. 29384
(2) State with specificity the grounds upon which the documents
transcript or other material are deemed to be non-confidential by the challenging party.
(c) A ruling on the confidentiality of the challenged information, document
data or study shall be made by the Commission after proceedings in camera, which shall be
conducted under circumstances such that only those persons duly authorized hereunder to have
access to such confidential materials shall be present. This hearing shall commence no earlier
than five (5) business days after service on the providing party of the pleading required by
subsection 5(b) above.
(d)The record of said in camera hearing shall be marked "CONFIDENTIAL-
SUBJECT TO PROTECTNE ORDER IN DOCKET NO. GNR- T -03-23." Court reporter notes
of such hearing shall be transcribed only upon agreement by the parties or Order of the
Commission and in that event shall be separately bound, segregated, sealed, and withheld from
inspection by any person not bound by the terms of this Order.
(e)In the event that the Commission should rule that any information
document, data or study should be removed from the restrictions imposed by this Order, no party
shall disclose such information, document, data or study or use it in the public record for five (5)
business days unless authorized by the providing party to do so. The provisions of this
subsection are intended to enable the providing party to seek a stay or other relief from an order
removing the restriction of this Order from materials claimed by the providing party to be
confidential.
(a)Receipt into Evidence.Provision is hereby made for receipt into evidence
in this proceeding materials claimed to be confidential in the following manner:
(1)Prior to the use of or substantive reference to any Confidential
Information, the parties intending to use such Information shall make that intention known to the
providing party.
(2)The requesting party and the providing party shall make a good-
faith effort to reach an agreement so the Information can be used in a manner which will not
reveal its confidential or proprietary nature.
PROTECTIVE ORDER NO. 29384
(3)If such efforts fail, the providing party shall separately identify
which portions, if any, of the documents to be offered or referenced shall be placed in a sealed
record.
(4) Only one (1) copy of the documents designated by the providing
party to be placed in a sealed record shall be made.
(5)The copy of the documents to be placed in the sealed record shall
be tendered by counsel for the providing party to the Commission, and maintained in accordance
with the terms of this Order.
(b)Seal.While in the custody of the Commission, materials containing
Confidential Information shall be marked "CONFIDENTIAL - SUBJECT TO PROTECTNE
ORDER IN DOCKET NO. GNR-O3-23" and Highly Confidential Information shall be marked
HIGHL Y CONFIDENTIAL-USE RESTRICTED PER PROTECTNE ORDER IN DOCKET
NO. GNR-O3-23" and shall not be examined by any person except under the conditions set forth
in this Order.
(c) In Camera Hearing.Any Confidential Information or Highly Confidential
Information that must be orally disclosed to be placed in the sealed record in this proceeding
shall be offered in an in camera hearing, attended only by persons authorized to have access to
the information under this Order. Similarly, any cross-examination on or substantive reference
to Confidential Information or Highly Confidential Information (or that portion of the record
containing Confidential Information or Highly Confidential Information or references thereto)
shall be received in an in camera hearing, and shall be marked and treated as provided herein.
(d)Access to Record.Access to sealed testimony, records and information
shall be limited to the Commission and persons who are entitled to review Confidential
Information or Highly Confidential Information pursuant to subsection 1 ( c) above and have
signed an Exhibit "A" or "" unless such information is released from the restrictions of this
Order either through agreement of the parties or after notice to the parties and hearing, pursuant
to the order of the Commission and/or final order of a court having final jurisdiction.
(e) Appeal/Subsequent Proceedings.Sealed portions of the record in this
proceeding may be forwarded to any court of competent jurisdiction for purposes of an appeal or
PROTECTIVE ORDER NO. 29384
to the FCC, but under seal as designated herein for the information and use of the court or the
FCc. If a portion of the record is forwarded to a court or the FCC, the providing party shall be
notified which portion of the sealed record has been designated by the appealing party as
necessary to the record on appeal or for use at the FCC.
(f)Return.Unless otherwise ordered, Confidential Information and Highly
Confidential Information, including transcripts of any depositions to which a claim of
confidentiality is made, shall remain under seal, shall continue to be subject to the protective
requirements of this Order, and shall, at the providing party s discretion, be returned to counsel
for the providing party, or destroyed by the receiving party, within thirty (30) days after final
settlement or conclusion of the TRO Proceedings. If the providing party elects to have
Confidential Information or Highly Confidential Information destroyed rather than returned
counsel for the receiving party shall verify in writing that the material has in fact been destroyed.
7. Use in Pleadings.Where references to Confidential Information or Highly
Confidential Information in the sealed record or with the providing party is required in pleadings
briefs, arguments or motions (except as provided in section 5), it shall be by citation of title or
exhibit number or some other description that will not disclose the substantive Confidential
Information or Highly Confidential Information contained therein. Any use of or substantive
references to Confidential Information or Highly Confidential Information shall be placed in a
separate section of the pleading or brief and submitted to the Commission under seal. This
sealed section shall be served only on counsel of record and parties of record who have signed
the nondisclosure agreement set forth in Exhibit "A" or "" All of the restrictions afforded by
this Order apply to materials prepared and distributed under this section.
8. Summary of Record.If deemed necessary by the Commission, the providing
party shall prepare a written summary of the Confidential Information referred to in the Order to
be placed on the public record.
The provisions of this Order are specifically intended to apply to all data
documents, studies, and other material designated as confidential or highly confidential by any
party to Docket No. GNR-03-23.
10.This Protective Order shall continue in force and effect after this Docket is closed.
PROTECTIVE ORDER NO. 29384
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of November 2003.
, PRESIDENT
Commissioner Smith was out of
J;llr~SMIT~~~5N1~sSIONER
ATTEST:
~AJJe D. Jewell
Commission Secretary
Vld/0:GNRTO323
PROTECTIVE ORDER NO. 29384
EXHIBIT"
CONFIDENTIAL INFORMATION
I have read the foregoing Protective Order dated
, -
' 2003 , in
Docket No. GNR-03-23 and agree to be bound by the terms and conditions of this Order.
Name
Employer
Job Title and Job Description
Business Address
Party
Signature
Date
PROTECTIVE ORDER NO. 29384
EXHIBIT
HIGHLY CONFIDENTIAL INFORMATION
I have read the foregoing Protective Order dated
, -
' 2003 , in
Docket No. GNR-03-23 and agree to be bound by the terms and conditions of this Order.
Name
Employer
Job Title and Job Description
Business Address
Party
Signature
Date
PROTECTIVE ORDER NO. 29384