20040401Protective Agreement.pdf

Avista Corp.
1411 East Mission PO Box 3727
Spokane, Washington 99220-3727
Telephone [phone]
Toll Free 800-727-9170 FECE\'lED
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March 31 , 2004
Idaho Public Utilities Commission
472 W. Washington St.
Boise, ill 83720-0074
Attention: Ms. Jean Jewell, Commission Secretary
Re:Protective Agreement Between Avista Corp. and Potlatch Corp.
in Case No s. A VU-04-01 and A VU-04-
Ms. Jewell
Enclosed for filing with the Commission are three copies of the Protective Agreement
between A vista Corporation and Potlatch Corporation, in the above stated dockets.
Although the protective agreement, at page 1 , paragraph 1 , only makes reference to Case
No. A VU-04-, Avista Corporation deems this agreement to cover both A VU-04-
01 and A VU-04-01.
If you have any questions, please call me at [phone] or Don Falkner at (509) 495-
4326.
Enclosures
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PROTECTIVE AGREEMENTBETWEEN 700!.1 l,FR -I MeJIO: 24
A VISTA CORPORATION AND POTLATCH CORPORATION
j I!L ) :~S coifi /S'SION
This Protective Agreement is entered into this~) ~ay of March 2004 by A vista
Corporation and Potlatch Corporation.
Recitals:
l. WHEREAS, A vista desires to make available to the Potlatch certain information
respecting Avista s electric rate case (Case No. A VU-04-l), and Potlatch desires to receive such
information.
2. WHEREAS, A vista and Potlatch anticipate that A vista may provide, or make
available for review, certain information, considered by A vista to be of a trade secret, privileged or
confidential nature (as defined in Idaho Code ~ 9-340 et seq. and ~ 48-801 et seq.
3. WHEREAS, A vista and Potlatch agree that entering into a Protective Agreement will
expedite the production of documents; will afford the necessary protection to Avista s and Potlatch'
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.IDAPA
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
A VISTA AND POTLATCH
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
protective orders.
(b)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 POTLATCH
(d) Nondisclosure Aereement.
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 of the Confidential Information shall be made by Potlatch
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 of the 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 A vista 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 A vista or, at the option of the 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 object to
its relevance or admissibility in any proceedings before this Commission.
PROTECTIVE AGREEMENT
A VISTA AND POTLATCH
4. Challenee to Confidentiality
(a)Initial Challenee.
This Protective Agreement establishes a procedure for the expeditious handling of
information A vista claims is confidential. In any proceeding before the Commission, Potlatch may
challenge the characterization of any information, document, data or study claimed by A vista to be
trade secret, proprietary or confidential information. If seeking to challenge the confidentiality of
any information Potlatch shall first contact counsel for Avista 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 Challenee.
In the event that the parties cannot agree as to the character of the information challenged
Potlatch 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 subj ect material are
deemed to be non-confidential by Potlatch.
(c)Challenee Hearine.
Potlatch 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 Avista and the Commission. The record of the in camera hearing shall
be marked "CONFIDENTIAL -- Subject to Protective Agreement."DDTo 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 ~~ 9-335 et seq.Ifinformation is found to
be not exempt from disclosure, Potlatch shall not disclose such challenged material or use it in the
PROTECTIVE AGREEMENT
A VISTA AND POTLATCH
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 here by made for receipt into evidence in this proceeding of materials claimed
to be confidential in the following manner:
(1)If Potlatch 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 of the documents designated to be placed in a sealed record
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
(4)
accordance with the terms of this Protective Agreement.
(b) Seal.
While in the custody of Potlatch, 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 Hearine 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 POTLATCH
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 of the court. If a portion of the 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 destro~r~a (shall be returned to counsel for the fJ/I
providing partyXwithin thirty (30) days after final settlement or conclnsion of this matter, including
V;11A-(administrative or judicial review thereof.
7. Use in Pleadines.
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
A VISTA AND POTLATCH
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
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 b7e effective on the date hereof.
DATED at Boise, Idaho this :J.J day of March 2004.
A VISTA CORPORATION
. 1. Me - Sen' r V.P. and General Counsel
A vista rporation
1411 E. Mission
PO Box 3727
Spokane, WA 99220-3727
POTLA CH CORPORA
tION By
Conley . Ward
Givens Pursley
501 Bannock Street
PO Box 2720
Boise, ID 83701
Attorney Representing
Potlatch Corporation
PROTECTIVE AGREEMENT
A VISTA AND POTLATCH