20070713Protective Agreement.pdf

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PROTECTIVE AGREEMENT
BETWEEN
A VISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION S:r;*f'F:. .j , .." i , ,
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This Protective Agreement is entered into this 13 tl1 day of July 2007 by A vista
Corporation and the Idaho Public Utilities Commission (Staff).
Recitals:
1. WHEREAS A vista Corporation (A vista) desires to make available to the Staff certain
information respecting A vista s Petition in Case No. AVU-07 -, 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 ~ 9-340 et seq. and ~ 48-801 et seq.
3. WHEREAS, A vista and Staff agree that entering into a Protective Agreement will
expedite the production of documents; will afford the necessary protection to Avista 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 pursuant to any
requests for information, subpoenas or other modes of discovery (formal or informal), and including
depositions, that are claimed to be of trade secret, proprietary or confidential nature (herein referred
to as "Confidential Information ) shall be so marked by the party or entity providing the information
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
certificate that the material is protected by law from public disclosure and cite the specific legal
authority to support the claim. IDAPA 31.01.01.233. Access to and review of Confidential
Information shall be strictly controlled by the terms of this Agreement.
PROTECTIVE AGREEMENT
(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 , 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.
(d) Nondisclosure Agreement.
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 the providing party, before disclosure is made.
2. (a) Copies.
No copies or transcriptions of the Confidential Information shall be made by the recipient
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 the providing party, all original documents and copies ofthe Confidential
Information shall be: 1) returned to the providing party or 2) shredded by the holder of such
documents within thirty (30) days after the final settlement or conclusion of the proceedings
including administrative or judicial review thereof.
Unless otherwise ordered , Confidential Information, including transcripts or depositions
containing information to which a claim of confidentiality is made, shall remain under seal, shall
PROTECTIVE AGREEMENT
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
returned to counsel for the providing party within thirty (30) days after final settlement or conclusion
of the proceedings, 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 ofthe providing
party, be either returned to the providing party 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.
4. Challenge to Confidentiality
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information that a party claims is confidential. Any party may challenge the characterization of any
information, document, data or study claimed by the providing party to be a trade secret, proprietary
or confidential information. A party seeking to challenge the confidentiality of any information shall
first contact counsel for the providing party and attempt to resolve any difference by stipulation.
Resolution may include removing the confidential classifications, creating a nonconfidential
summary, reformatting the information, etc.
(b) Subsequent Challenge.
In the event that the parties cannot agree as to the character of the information challenged
any party challenging the confidentiality may petition the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all parties to the case 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 the challenging party.
PROTECTIVE AGREEMENT
(c) Challenge Hearing.
The challenging party 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 the providing party and the Commission. The record
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 SS 9-335 , 9-337 et seq.
).
If information is found to be not
exempt from disclosure, no party shall disclose such challenged material or use it in the public
record, or otherwise outside the proceedings for at least five (5) business days unless the providing
party consents to such conduct. This procedure enables the restrictions of this Agre~ment 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 the requesting party 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 the providing
party 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 ofthe used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential Information
described in paragraph 5(a)(1) shall be placed in the sealed record.
(3)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.
PROTECTIVE AGREEMENT
(4)The copy of the documents to be placed in the sealed record shall be
tendered by counsel for the providing party 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 Hearing 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 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.
(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. Ifa 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
PROTECTIVE AGREEMENT
providing party J within thirty (30) days after final settlement or conclusion of this matter, including
administrative or judicial review thereof.
7. Use in Pleadings.
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
who have signed the nondisclosure 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, the providing parties 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.
PROTECTIVE AGREEMENT
DATED at Boise, Idaho this
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dayof)mfeI2007.
AVISTA CORPORATION
By
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R. Blair Strong
Jerry K. Boyd
Paine Hamblen LLP
717 West Sprague, Suite 1200
Spokane, W A 99220-3505
Attorneys for Avista Corporation
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By ~d'(~4.
Scott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this 1:9b-ay of Ju~ 2007
in Case No. A VU-07-02 and agree to be bound by the terms and conditions of such
Agreement.
2t:~g
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street, Boise, Idaho
Business Address
Commission Staff
Party
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Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this day o 2007
in Case No. A VU-07-02 and agree to be bound by the terms and conditions of such
Agreement.
Terri Carlock
OJ1~ n eX
Idaho Public Utilities Commission
Employer or Firm
472 West Was"hington Street, Boise, Idaho
Business Address
Commission Staff
Party
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Date
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this t~day of 2007
in Case No. A VU-O7-02 and agree to be bound by the tenns and conditions of such
Agreement.
(J&-,~, Ceci1y Ighn
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street, Boise, Idaho
Business Address
Commission Staff
Party
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