20040209Protective Agreements.pdf

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I LoU DAVID 1. MEYER
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SENIOR VICE PRESIDENT AND GENERAL COUNSELUTJLi T ;~~S COI';I"lJ~SION
AVISTA CORPORATION
O. BOX 3727
1411 EAST MISSION AVENUE
SPOKANE, WASHINGTON 99220-3727
TELEPHONE: [phone]
FACSIMILE: [phone]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF A VISTA CORPORATION FOR THE
AUTHORITY TO INCREASE ITS RATES
AND CHARGES FOR ELECTRIC AND
NATURAL GAS SERVICE TO ELECTRIC AND
NATURAL GAS CUSTOMERS IN THE STATE
ill IDAAO
CASE NO. A VU-04-
CASE NO. A VU-04-
ATTORNEY'S CERTIFICATE
AND CLAIM OF
CONFIDENTIALITY
RELATING TO PORTIONS OF
AVISTA'S DIRECT
TESTIMONY AND EXHIBITS
FOR A VISTA CORPORATION
, David J. Meyer, represent Avista Corporation. I am Senior Vice President and
General Counsel for A vista Corporation ("A vista" or "Company ) and I am appearing on
its behalf in this proceeding.
I make this certification and claim of confidentiality pursuant to IDAP A 31.01.
because Avista, through its Direct Testimony, Exhibits and supporting workpapers, is
disclosing certain information that is CONFIDENTIAL and constitutes TRADE SECRETS
as derIDed by Idaho Code Section 9-340 and 48-801 and protected under IDAP A
31.01.01.067 and 31.01.01.233.
The printed information A vista provides will, as required under IDAP A Rule 67, be
marked as "CONFIDENTIAL " will be reproduced "on any colored paper other than
white " and will be provided under separate cover. The electronic information A vista
provides will be reproduced separately on a compact disk (CD) and will also be marked as
CONFIDENTIAL.
The confidential information that A vista is disclosing can be classified into three
basic categories: 1) information pertaining to contract prices, terms and conditions, 2)
certain results providing detailed information on the Company s load and resource positions
by month, and 3) Risk Management Policies which contain general policies, guidelines, and
position limits.
A vista herein asserts that the aforementioned information is confidential in that: 1)
the contract information is prohibited, by the contract terms, from public disclosure, 2)
making the load and resource information public will give entities access to competitive
information on future operating plans and market purchase requirements and A vista
ATTORNEY'S CERTIFICATE -
believes the information could be used to disadvantage its customers, and 3) the Risk
Management Policies, if shared with competitors, could also be used to disadvantage
A vista s customers.
I am ofthe opinion that this information is "CONFIDENTIAL " as defined by Idaho
Code Sections 9-340D and 48-801 , should therefore be protected from public inspection
examination and copying, and should be utilized only in accordance with the terms of the
PROTECTIVE AGREEMENT BETWEEN A VISTA CORPORATION AND IDAAO
PUBLIC UTILITIES COMMISSION STAFF.
RESPECTFULLY SUBMITTED this 5th day of February, 2004
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David J. Meyer
Senior Vice President and General Counsel
A vista Corporation
ATTORNEY'S CERTIFICATE - 2
PROTECTIVE AGREEMENT
BETWEEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
This Protective Agreement is entered into this 6th day of February 2004 by Avista
Corporation and the Idaho Public Utilities Commission (Staff).
Recitals:
1. WHEREAS, A vista desires to make available to the Staff certain information
respecting Avista s electric rate case (Case No. A VU-04-1), and Staff desires to receive such
information.
2. WHEREAS, A vista and Staff anticipate that A vista may provide, or make available
for review, certain information, considered by Avista to be of a trade secret, privileged or
confidential nature (as defined in Idaho Code 9 9-340 et seq. and 9 48-801 et seq.
3. WHEREAS, A vista and Staff agree that entering into a Protective Agreement will
expedite the pro~uction of documents; will afford the necessary protection to A vista s and Staff's
employees and/or representatives in this proceeding who might review the information and
subsequently be requested to reveal its contents by setting forth clear cut parameters for use of
Confidential Information, and will protect Confidential Information which might be provided
hereafter
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a)Confidential Information.
All documents, data, information, studies and other materials furnished that are claimed
to be of trade secret, proprietary or confidential nature (herein referred to as "Confidential
Information ) shall be so marked by A vista by stamping the same with a designation indicating its
trade secret, proprietary or confidential nature and printed on "colored" paper. Any claim of
confidentiality must be accompanied by an attorney s certificate that the material is protected by law
from public disclosure and cite the specific legal authority to support the claim. IDAP
31.01.01.067 and 31.01.01.233. Access to and review of Confidential Information shall be strictly
controlled by the terms of this Agreement.
PROTECTIVE AGREEMENT
AVISTAAND IPUC STAFF
Unless otherwise agreed, the obligations of confidentiality and non-use set forth in this
Agreement do not apply to such Confidential Information that:
(1) Was, at the time of receipt, already known to the receiving party free of any
obligation to keep it confidential as evidenced by written records prepared prior
to delivery by the disclosing party; or
(2) Is or becomes publicly known through no wrongful act of the receiving party; or
(3) Is rightfully received from a third person having no direct or indirect secrecy or
confidentiality obligation to the disclosing party with respect to such
information; or
(4) Is independently developed by an employee, agent, or contractor ofthe receiving
party that is not involved in any manner with the provision of services pursuant
to this Agreement and does not have any direct or indirect access to the
Confidential Information; or
(5) Is approved for release by written authorization of the disclosing party; or
(6) Is required to be made public by the receiving party pursuant to applicable law
or regulation, provided that the receiving party shall give sufficient notice of the
requirement to the disclosing party to enable the disclosing party to seek
(b)
protective orders.
Use of Confidential Information
All persons who may be entitled to review, or who are afforded access to any
Confidential Information by reason ofthis Agreement 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 the proceedings before the Commission and then solely as
contemplated herein, and shall keep the Confidential Information secure as trade secret, confidential
or proprietary information and in accordance with the purposes and intent of this Agreement.
(c)Persons Entitled to Review.
Access to Confidential Information shall be limited to counsel of the undersigned parties
employees, experts, agents or representatives of the undersigned parties who have executed an
Exhibit "A" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosure.
PROTECTIVE AGREEMENT
A VISTA AND IPUC STAFF
(d)Nondisclosure A2reement.
Confidential Information shall not be disclosed to any person who has not signed a
nondisclosure agreement on this form, which is attached hereto as Exhibit "A" and incorporated
herein. The nondisclosure agreement or Exhibit "A" shall require the person to whom disclosure is
to be made to read a copy of this Protective Agreement and to certify in writing that he or she has
reviewed the same and has consented to be bound by its terms. The Agreement shall contain the
signatory s full name, permanent address and employer. Such agreement shall be delivered to
counsel for A vista before disclosure is made.
2. (a)Copies.
No copies or transcriptions ofthe Confidential Information shall be made by Staff except
as necessary to make the information available to individuals who have executed an Exhibit "A" to
this Protective Agreement.
(b)Return of confidential Information.
Upon request of A vista, all original documents and copies ofthe Confidential Information
shall be: 1) returned to A vista, or 2) shredded by the holder of such documents.
Unless otherwise ordered, Confidential Information, including transcripts or depositions
containing information to which a claim of confidentiality is made, shall remain under seal, shall
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
returned to counsel for Avista within thirty (30) days after final settlement or conclusion of the
proceedings, before the Commission which Confidential Information is relevant including
administrative or judicial review thereof. After return of documents pursuant to this paragraph, and
upon request, a written receipt verifying return shall be provided by counsel.
(c)Return of Notes.
Any notes maintained by a recipient of Confidential Information which embody or reflect
any of the Confidential Information provided under this Agreement shall, upon request of A vista, be
either returned to Avista or, at the option ofthe recipient, destroyed.
3. Nonwaiver of Objection to Admissibility.
The furnishing of any document, information, data, study or other materials pursuant to
this Protective Agreement shall in no way limit or waive the right of the providing party to obj ect to
its relevance or admissibility in any proceedings before this Commission.
PROTECTIVE AGREEMENT
A VISTA AND IPUC STAFF
4. Challen2e to Confidentiality
(a)Initial Challen2e.
This Protective Agreement establishes a procedure for the expeditious handling of
information A vista claims is confidential. In any proceeding before the Commission, Staff may
challenge the characterization of any information, document, data or study claimed by A vista to be a
trade secret, proprietary or confidential information. If seeking to challenge the confidentiality of
any information Staff shall first contact counsel for A vista and attempt to resolve any difference by
stipulation. Resolution may include removing the confidential classifications, creating, a non-
confidential summary, reformatting the information, etc.
(b)Subsequent Challen2e.
In the event that the parties cannot agree as to the character ofthe information challenged
Staff may challenge the confidentiality of the information by petitioning in any proceeding in which
the information is relevant the Commission to rule upon the disputed information. The Petition shall
be served upon the Commission and all parties to the proceeding who have signed on Exhibit "A" as
provided in this Protective Agreement. The Petition shall designate with specificity the document or
material challenged and state the grounds upon which the subject material are deemed to be non-
confidential by Staff.
(c)Challen2e Hearin2.
Staff shall request that the Commission conduct an in camera proceeding where only
those persons duly authorized to have access to such challenged materials under this Protective
Agreement shall be present. This hearing shall be commenced no earlier than five (5) business days
after serving the Petition on A vista and the Commission. The record ofthe in camera hearing shall
be marked "CONFIDENTIAL -- Subject to Protective Agreement." To the extent necessary, the
transcript of such hearing shall be separately bound, segregated, sealed, and withheld from public
inspection by any person not bound by the terms of this Agreement.
(d)Determination.
The parties will ask the Commission to issue an Order determining whether any
challenged information or material is not properly deemed to be exempt from public disclosure
pursuant to the Idaho Public Records Act. (Idaho Code 99 9-335 et seq.Ifinformation is found to
be not exempt from disclosure, Staff shall not disclose such challenged material or use it in the
PROTECTIVE AGREEMENT
A VISTA AND IPUC STAFF
public record, or otherwise outside the proceedings for at least five (5) business days unless Avista
consents to such conduct. This procedure enables the providing party to seek a stay or other relief
from the Commission s Order removing the restrictions ofthis Agreement from material claimed to
be confidential.Such relief may be sought from the Commission or a court of competent
jurisdiction.
5. (a)Receipt Into Evidence.
Provision is hereby made for receipt into evidence in this proceeding of materials claimed
to be confidential in the following manner:
(1)If Staff intends to use Confidential Information or to make substantive
reference to Confidential Information supplied to it under this Agreement, it
shall give reasonable prior notice of such intention to A vista and shall provide
copies of the used Confidential Information or substantive reference to
Confidential Information only to the providing party, and such other parties, if
any, who have executed an Exhibit "A" to this Protective Agreement.
(2)One (1) copy of the used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential Information
(3)
described in paragraph 5(a)(1) shall be placed in the sealed record.
Only one (1) copy ofthe documents designated to be placed in a sealed record
(4)
shall be made, which copy shall be supplied by the providing party.
The copy of the documents to be placed in the sealed record shall be tendered
by counsel for A vista to the Commission, and shall be maintained in
accordance with the terms of this Protective Agreement.
(b) Seal.
While in the custody ofthe Commission, materials containing Confidential Information
shall be marked "CONFIDENTIAL - - SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
forth in this Agreement, if applicable.
(c)In Camera Hearin2 and Transcripts.
Any Confidential Information that must be orally disclosed at a hearing in the
proceedings shall be offered at an in camera hearing, attended only by persons authorized to have
PROTECTIVE AGREEMENT
A VISTA AND IPUC STAFF
access to the information under this Protective Agreement. Similarly, any transcription of any
examination or other reference to Confidential Information (or that portion of the record containing
Confidential Information) shall be marked and treated as provided herein for Confidential
Information. See IDAPA 31.01.01.287.
(d)Access to Record.
Access to sealed testimony, records, and information shall be limited to the Commission
and persons who have signed an Exhibit "A" as provided in this Protective Agreement, unless such
information is released from the restrictions of this Agreement either through agreement of the
parties or after notice to the parties and hearing, pursuant to the order ofthe Commission and/or the
final order of a court having final jurisdiction.
(e)Appeal.
Should an appeal from the proceeding be taken, sealed portions of the record may be
forwarded to any court of competent jurisdiction for purposes of an appeal, but under seal as
designated herein for the information and use ofthe court. If a portion ofthe record is forwarded to a
court under seal for the purposes of an appeal, 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.
6. Destruction for Returnl
Unless otherwise ordered, Confidential Information provided pursuant to a discovery
request and this Agreement, including transcripts of any discovery depositions to which a claim of
confidentiality is made, shall remain under seal, shall continue to be subject to the protective
requirements of this Agreement, and shall be destroyed (shall be returned to counsel for the
providing party) within thirty (30) days after fmal settlement or conclusion ofthis matter, including
administrative or judicial review thereof.
7. Use in Pleadin2s.
Where references to Confidential Information in the sealed record or with the custodian is
required in pleadings, briefs, arguments, or motions (except as provided in Paragraph 5), it shall be
by citation to title or exhibit number or some other description that will not disclose the substantive
Confidential Information contained therein. Any use of or substantive references to Confidential
Information shall be placed in a separate section of the pleading or brief and submitted to the
Commission pursuant to Paragraph 5. This sealed section shall be serviced only on counsel of record
PROTECTIVE AGREEMENT
AVISTAAND IPUC STAFF
who have signed the non-disclosure agreements set forth in Exhibit "A" attached to this Protective
Agreemerit, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
A" .
8. Summary of Record.
If deemed necessary by the Commission, A vista shall prepare a written summary of the
Confidential Information referred to in Orders to be issued to the public and the parties.
9. This Protective Agreement shall bec~ple effective on the date hereof.T'l
DA TED at Boise, Idaho this
~ -
ay of February 2004.
A VISTA CORPORATIONBy David er - SeniorXT.P. and General Counsel
A vista Corporation
1411 E. Mission
PO Box 3727
Spokane, W A 99220-3727
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Scott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ill 83702
Attorney Representing
Idaho Public Utilities Commission Staff
bls/M: contractA VU- E-O4-0 l ProtectiveAgreement
PROTECTIVE AGREEMENT
A VISTA AND IPUC STAFF
who have signed the non-disclosure agreements set forth in Exhibit "A" attached to this Protective
Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
A" .
8. Summary of Record.
If deemed necessary by the Commission, A vista shall prepare a written summary ofthe
Confidential Information referred to in Orders to be issued to the public and the parties.
9. This Protective Agreement shall become effective on the date hereof.
,th
DATED at Boise, Idaho this day of February 2004.
A VISTA CORPORATION
David J. Meyer - Senior V.P. and General Counsel
A vista Corporation
1411 E. Mission
PO Box 3727
Spokane, W A 99220-3727
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By 4'.p;z:Q~
ScottD. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ill 83702
Attorney Representing
Idaho Public Utilities Commission Staff
bls/M:contractA vu- E-O4-0 l ProtectiveAgreement
PROTECTIVE AGREEMENT
A VISTA AND IPUC STAFF
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6 , 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such Agreement.
JO~ ~OND - Deputy Attorney General
Attorney General Office
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
o~ Ie,?! /:;LDot
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the tenns and conditions of such Agreement.
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DAVE CHUNKE
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
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Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such Agreement.
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MARIL 12N PARKER
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
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Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the tenus and conditions of such Agreement.
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K STERLING
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
Date
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EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such Agreement.
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RANDY LOBB
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Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
2/ ro (0 L(
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the tenns and conditions of such Agreement.
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HAEIIFUSS
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
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:r;)ate
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the tenns and conditions of such Agreement.
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~U:' CbONNGLI
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
;24)'1
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such Agreement.
KA H S . TON
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
" J J "" i~/G u't-
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the tenns and conditions of such Agreement.
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PATRICIA HARMS
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
cllc~ loY
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
0). Oft /6
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated Febmary 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such Agreement.
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TERRI CARLOCK
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
JJ k)OLf
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated February 6, 2004, in Case No. A VU-
04-1 and agree to be bound by the terms and conditions of such A
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
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Date