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HomeMy WebLinkAbout20051027Protective agreement.pdfPROTECTIVE AGREEMENT BETWEEN VISTA CORPORATION AND IDAHO PUBLIC UTILITIES COMMISSION STAFF This Protective Agreement is entered into this Corporation and the Idaho Public Utilities Commission (Staff). day of October 2005 by A vista Recitals: 1. WHEREAS, A vista desires to make available to the Staff certain information regarding the Thompson River Co-Gen complaint case (Case No. A VU-05- 7), 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 A vista 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, Avista and Staff agree that entering into a Protective Agreement will expedite the production of documents; will afford the necessary protection to Avista s and Staffs 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 VISTA AND 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 of the receiving party that is not involved in any manner with the provision of services pursuant to this Agreement an~ 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 of this 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 VISTA AND IPUC STAFF (d) N ondiscIosure 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 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 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 , 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 VISTA AND IPUC STAFF 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, 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 Challenee. In the event that the parties cannot agree as to the character of the 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)Challenee Hearine. 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 of the 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.If information is found to be not exempt from disclosure, Staff shall not disclose such challenged material or use it in the PROTECTIVE AGREEMENT AVISTA AND IPUC STAFF public record, or otherwise outside the proceedings for at least five (5) business days unless A vista consents to such conduct. This procedure enables the providing party to seek a stay or other relief be confidential. from the Commission s Order removing the restrictions of this Agreement from material claimed to 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 of the 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 of the 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 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 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 IDAP A 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 of the 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. Ifa 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 (or Returnl Unless otherwise ordered, ~onfidential 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 J within thirty (30) days after final settlement or conclusion of this matter, including 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 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 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 become effective on the date hereof. DATED at Boise, Idaho this day of October 2005. AVISTA CORPORATION SLt CLit~ R. B lair Strong Paine, Hamblen, Coffin, Brooke & Miller, LLP 717 W. Sprague Avenue, Suite 1200 Spokane, W A 99201-3505 Attorneys Representing A vista Corporation IDAHO PUBLIC UTILITIES COMMISSION STAFF Scott D. 00 ury Deputy Attorney General Idaho Public Utilities Commisson 472 West Washington Street Boise, ID 83702 1/)/J7/t'~ Attorney Representing Idaho Public Utilities Commission Staff bls/M:contractA VU-O5-07 _ProtectiveAgreement PROTECTIVE AGREEMENT VISTA AND IPUC STAFF lUI Zt ZUU5 1U: 21 l'AA.PAINh HAMBLhN UUli/UU~ 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 o~ Record. If deemed necessary by the Commission, A vista shall prepare a written-summary of the Confidential Infonnation referred to in Orders to be issued to the public and the parties. 9. This Protective Agreement shall b ~me effective on the date hereof. DATED at Boise, Idaho this ;l.day of October 2005. AVISTA CORPORATION fJ;;1,/ VP and Chief Counsel for Regulatory & Governmental Affairs 1411 D. Mission Avenue, MSC- Spokane, W A 99220-3727 Attorney Representing A vista Corporation IDAHO PUBLIC UTILITIES COMMISSION STAFF Scott D. Woodbury Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise, ill 83702 A ttorney Representing Idaho Public Utilities Commission Staff blslM:contractA VU-O5-07 _ProtectiveAgreement PROTECTIVE AGREEMENT AVISTA AND IPUC STAFF EXHIBIT" I have reviewed the foregoing Protective Agreement dated October , 2005 in Case No. A VU-05- 7 and agree to be bound by the terms and conditions of such Agreement. J(L(:5~ RICK STERLING IDAHO PUBLIC UTILITIES COMMISSION Employer or Firm 472 W. WASHINGTON STREET, BOISE ID 83702 Business Address COMMISSION STAFF Party Oe-f' , 2 OtiS- Date PROTECTIVE AGREEMENT VISTA AND IPUC STAFF EXHIBIT I have reviewed the foregoing Protective Agreement dated October 2005 in Case No. A VU-05- 7 and agree to be bound by the terms and conditions of such Agreement. RANDY LOBB IDAHO PUBLIC UTILITIES COMMISSION Employer or Firm 472 W. WASHINGTON STREET, BOISE ID 83702 Business Address COMMISSION STAFF Party /~h 7/tJ7- Date PROTECTIVE AGREEMENT VISTA AND IPUC STAFF