20160615Clearwater Protective Agreement.pdf

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PROTECTIVE AGREEMENT
BETWEEN
AYISTA UTILITIES AND
CLEARWATER PAPER CORPORATION
(AND OTIIER PARTIES AS APPLICABLE)
This Protective Agreement is entered into ,^r'{*, of rtrf by Avista Utilities
and Clearwater Paper Corporation (Clearwater), and other parties as applicable.
Recitals:
l. WHEREAS, Avista Utilities and Clearwater Paper Corporation (hereinafter
"Clearwater") anticipate that parties to this proceeding may make requests to provide, or make
available for review, certain information, considered by its custodian to be of a trade secret,
privileged or confidential nature (as defined in ldaho Code $$ 9-340 and 48-801).
2. WHEREAS, Avista Utilities and the undersigned parties agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary protection
to Avista Utilities and the undersigned parties' employees and/or representatives in the 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 during the course of the proceedings, now therefore,
IT IS HERJ,BY STIPT]LATED AI\ID AGREED AS FOLLOWS:
l. (a) Conlidential Information
All documents, datq information, studies and other materials fumished 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 confrdential nature (herein referred
to as "Confidential lnformation") 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 "yellow" paper. IDAPA 31.01.01.067. Any claim of confidentiality must be
accompanied by an attomey's certificate that the material is protected by law from public disclosure
and cite the specific legal authority to support the claim. IDAPA 31.01.01.233.
PROTECTIVE AGREEMENT
(b) Protection of Conlidential Information
Access to and review of Confidential Information shall be strictly controlled by the terms of
this Agreement. Unless otherwise ordered, Confidential Information, including transcripts of
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 not be
disclosed to individuals who have not executed the nondisclosure agreement set forth in Exhibit "A."
(c) Use of Conlidential 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
lnformation secure as trade secret, confidential orproprietary information and in accordance with the
purposes and intent of this Agreement.
(d) 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 'oA" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosure.
(e) Non-disclosure Asreement
Confidential lnformation shall not be disclosed to any person who has not signed a non-
disclosure agreement on this form, which is attached hereto as Exhibit "A" and incorporated herein.
The non-disclosure agreement or Exhibit'oA" shall require the person to whom disclosure is to be
made to read a copy of this Protective Agreement and to certiff 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. Copies
No copies or transcriptions of the Confidential Information shall be made by the recipient
except uls necessary to make the information available to individuals who have executed an Exhibit
"A" to this Protective Agleement.
PROTECTIVE AGREEMENT
3. Non-waiver of Obiection 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. Challenee to Conlidentialitv
(a) Initial Challenee
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 non-confidential
surlmary, reformatting the information, etc.
(b) SubsequentChallenee
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.
(c) Challenee Hearine
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 of
the in camerahearing shall be marked "COhI"FIDENTIAL - 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.
PROTECTIVE 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
Idatro Public Records Act(ldaho Code $$ 9-335, 9-337,9-340A). 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 Agreement from
material claimed to be confidential. Such relief may be sought from the Commission or a court of
competent j urisdiction.
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:
(l) 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 ofthe used Confidential Information
or substantive reference to Confidential lnformation only to the providing
party, and such other parties, if any, who have executed an Exhibit "An' to this
Protective Agreement.
(2) One ( I ) copy of the 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) 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 shall be
maintained in accordance with the terms of this Protective Agreement.
(b) Seal
While in the custody of the Commission, materials containing Confrdential 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.
PROTECTIVE AGREEMENT
(c) .Iz Carzera Hearins 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 lnformation (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'oA" as provided in this Protective Agreement, unless such
information is released from the restrictions of this Ageement 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) Aoneal
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. 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 served 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
3.Arr.
PROTECTIVE AGREEMENT
7. Summarv of Record
lf deemed necessary by the Commission, the providing parties shall prepare a written
swnmary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
8. Return or Destruction of Conlidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Information shall be: (l) returned to the providing party; or (2) or at the option of the
recipient destroyed within thirty (30) days after the final settlement or conclusion of the proceedings,
including administative or judicial review thereof. After return or destruction of documents
pursuant to this paragraph, and upon request, a written receipt verifying retum or desti'trction shall be
provided by counsel.
(b) On a case-by-case basis and upon notification to the utility, Clearwater may retain
one copy of the Conlidential Information under seal. Notrvithstanding any other provision in this
Agreement, any member of Clearwater may review and use that copy ofthe Confidential Information
outside this proceeding while performing his or her duties as a Clearwater member. Clearwater's use
and disclosure of the Confidential Information in a later Commissionproceeding shall be subjectto
any protective agreement signed in the proceeding.
(c) 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.
9. Effective Date
This Protective Agreement shall become effective on the date hereof.
6PROTECTIVE AGREEMENT
DATED this 2^{day of
AVISTA UTILITIES
tv N(2016.
By,
David J. Meyer
Avista Corporation
P.O. Box 3727
141I E. Mission Ave.
Spokane, WA99220-3727
Vice President and Chief Counselof Regulatory and Government Affairs
Avista Corporation
CLEARWATER PAPER CORPORATION
Richardson & O'Leary PLLC
515 N.27th Steet
Boise, D 83702
Representing
Clearwater Paper Corporation
PROTECTIVE AGREEMENT
EXHIRII a6r
I have reviewed the foregoing Protective Agreement dateA frtlf ), .ZOrcin Case No.
AVU-E-16-03 and agee to be bound by the terms and conditions of such Ageement.
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