20170915Protective Agreement.pdf

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ldaho Public Utilities Commission
Otfice of the SecretaryBECEIVED
sEP I 5 2017
PROTECTTYE AGREEMENT
BETWEEN
AYISTA UTILITIES A}tD
CLEARWATER PAPER CORPORATION
(AND OTEER PARTIES AS APPLICABLE)
Boise, ldaho
This Protective Agreement is entered into thisf;aay of Aarus* by AvistaUtilities
and Clearwater Paper Corporation (Clearwater), in connection with Case Nos. AVU-E-17-01 and
AVU-G-17-01.
Recitals:
l. WHEREAS, Avista Utilities and Clearwater Paper Corporation (hereinafter
"Clearwater") anticipate that parties to this proceeding may rnake 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 inldaho Code $$ 74-107 through 74-109 and 48-801),
2. WIIEREAS, Avista Utilities and the undersigned parties agree that entering into a
Protective Agrcement 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 Inforrration, and will protect Confidential
Information which might be provided during the course of the proceedings, now therefore,
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 inforrnal), and including
depositions, that are claimed to be of nade secret, proprietary or confrdential nattre (herein refened
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 tade secret proprietary or confidential nature
and printed on "yellour" paper. IDAPA 31.01.01.067. 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 31.01.01.233.
1PROTECTTVE AGREEMENT
(b) Protection of Confidential Infomation
Access to and review of Confidential Information shall be strictly controlled by the terms of
this Agreement. Unless otherwise ordered, Confidential lnfonnation, including hanscripts 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 Confidential Infomation
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
forpurposes ofbusiness or competition, or any purpose otherthanthe purpose of preparation forand
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secref confidential or proprietary information and in accordance with the
purposes and intent of this Agreement.
(d) Persons Entitlgd 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 bave exesuted an
Exhibit "A" to this Agreement. Such infomration will be clearly marked and protected from
unauthorized public disclosure,
(e) Non-disclosureAsreement
Confidential Information 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 "A" 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
.,PROTECTIVE AGREEMENT
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.
3. Non-waiver of Obiection to Admissibilitv
The fumishing of any document, information, data, study or other materials purzuant 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. Challenqe to ConfidentialitY
(a) Initial Challenee
This Protective Agreement establishes a procedtre for the expeditious handling of
information that a parly claims is confidential. Any party may challenge the characterization of any
information, document data or study claimed by the providing pafy to be a trade secret, proprietary
or confidential information, A party seeking to challenge the confidentiality of any infomration 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
summary, reformatting the information, etc.
(b) SubsequentChallenee
In the event that the parties cannot agre€ as to the character of the information challenged,
any party challenging the confidentiality may petition the Comrnission 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) Chrllenee Hearins
The challenging party shall request that the Commission conduct an in camera proceeding
where only those percons 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 parly and the Commission, The record of
the in camera hearing shall be marked "CONFIDENTIAL - Subject to Protective Agreement."
3PROTECTIVE AGREEMENT
To the extent necessary, the transcript ofsuch 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 ActQdaho Code $$ 74-101through 74-126). 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 restictions of this Agreement from
material claimed to be confrdential. Suoh 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 mzumer:
(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 ofthe used Confi.dential Inforrration
or substantive reference to Confidential lnformation only to the providing
party, and such other parties, if any, who have executed an Exhibit "A" to this
Protective Agreement.
(2) One ( I ) copy of the used Confi dential Information or zubstantive reference to
Confidential Information or substantive reference to Confidential [nformation
described in paragraph 5(aX1) 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 Protestive Agreement.
(b) Seal
4PROTECTIVE AGREEMENT
While inthe custody of the Commission, materialscontaining Confidential Information shall
be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIF'ICATE Of'
CONI'IDENTIALITY'and shall not be examined by any person except under the conditions set
forth in this Ageement, if applicable.
(c) .[z Camera Hearins and Transcrints
Any Confidential lnformation 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 Confrdential
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
panies or after notice to the parties and hearing, pursuant to the order of the Commission and/or the
final order of a court having frnal 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 hercin 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. Use in Pleadinss
Where references to Confidential lnformation 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
5PROTECTWE AGREEMENT
Agreement, and may, in tum, be disclosed by them only to individuals who likewise signed Exhibit
*A,.
7, Summarv 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.
8. Bgturn or Destruction of Confi4gntial Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Information shall be: (1) retumed to the providing psrty; or (2) or at the option of the
recipient destroyed within thirty (30) days after the final settlement or conclusion ofthe proceedings,
including administrative or judicial review thereof. After return or destruction of documents
pursuant to this paragraph, and upon request, a written receipt veriffing return or destruction shall be
provided by counsel.
O) On a case-by-case basis and upon notification to the utility, Clearwater may retain
one copy of the Confrdential Information under seal. Notwithstanding any other provision in this
Agreement, any member of Clearwater may review and use that copy of the Confidential Information
outside this proceeding while performing his or her duties as a Clearwater meurber. Clearwater's use
and disclosure of the Confidential Information in a later Commission proceeding shall be subject to
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 D.ate
This Protective Agreement shall become effective on the date hereof.
6PROTECTIVE AGREEMENT
*4
DATED thiS 2Z of 2017.
AVISTA UTILITIES
(r/btttri.Mey-
Avista Corporation
P.O.Box3727
l4l I E. Mission Ave.
Spokane, WA99220-3727
Vice President and Chief Counsel of Regulatory and Govemment Affairs
Avista Corporation
CLEARWATER PAPER CORPORATION
Peter J.
Richardson & O'Leary PLLC
515 N.27th Stre*
Boise, Iu:^83702
Representing
C learwater Paper Corporation
7PROTECTTVE AGREEMENT
Bv
EXIIIBIT (A''
I have reviewed the forcgoing Protective Agreement dated 8 in Case No.
AVU-E-17-01/AVU-G-17-01 and agree to be bound by the terms and conditions of such Agreement.
Kar^h Wa\c's
Name
/LLL
Employer or Firm
5lS ,U ln $ Ff -Bo ue, t.D flzoz
Business Address
8-3o -20t)
Date
Palty
8PROTECTTVE AGREEMENT
Clearvn,+e-, (afq k?t"^*
^
EXI{IRIT ffAtl
I have reviewed the foregoing Protective Agreemcnt dated in Case No.
AW-E-17-01/AVU-G-17-01 and agree to be bound by the tcrms and conditions of such Agreement.
&req ()dams
Nam/
E;bwdon^ hfurt ruu-
Employer or Firm
slsl U! J+ fJoix /b 0:roz
Business Address
0/Vvtkltf a
Party
qPROTECTIVE AGREEMENT
EXHIBIT "A'
I have reviewed the foregoing Protective Agreement dated in Case No.
AW-E-17-01/AW-G-17-01 and agree to be bound by the terms and conditions of such Agreement
2 dJ
Name
8., Gd*r€e*- [Lrro
Employer or Firm
o
Business Address
c
Party
EO
L?
9 [,7 fap rt
Date
8PROTECTIVE AGREEMENT
EXI{IBIT ..A''
I have reviewed tho foregoing hotective Agrtomont datcd
tt-,-.-)()ln Case No.
AW-E-17-01/AVU-G-1741 and agr6o to bc bound by tre torms and conditions of such Agreemont.
Name
C\en ,- ^\u ,,"t'J
Employer or Firm
'9t,.,
Business Addtess
C lgr^ (,r)e4r- (o-pr.C.n- -$'
Parly
1l /r+r3
Date
8PROTECTIYE AGREEMENT
EJilIIBIT f'.A."
I havo rpviowed tho forcgoing Probctivo Agreomemt datod Ausust 30 .2$17 inCaseNo
AW-E-17-01/AW-CrI7{1 and agrro to be bord by tro tqos and conditions of sudt Agreemmt
MarvinALcryallcn
Narno
MA Lswa[co & Associatoq LLC
Employer orFimr
7408 SWMaplclcdSt Portland, OR 97223
Business Address
Clearwatrr Pryer Corpo:atiou
Porty
Augwt 30,2O1'l
Dato
8PROTtsCTTVE AGREEMENT
EXHIBIT (.A''
I have reviewed the foregoing Protective Agreement dated in Case No.
AVU-E-17-01/AVU-G-17-01 and agree to bc bound by the tenns and conditions of such Agreemont
<;,4^
Name
C\cqr.^loAcr Q.P"r Core.,r*$o^
Employer or Firm
6og Al\t (oo Lewts4>n I35ot
Business Address
C lq1q!\- 9s- I"tpqo-ti1-
Party
I I
Date
8PROTECTTVE AGREEMENT
lo
EXTrIRrT "At',
I havc roviewod 0ro foregoing Protective Agreement dated
Business Address
in Case No.
AW-E-17-01/AVU-G-17-01 and agrce to be bowrd bytho terms conditions of such Ageomont
Name
Employer or Firm
4 Tlaci
)
Party
.J,t'
Dato
8PROTECTTVE AGREEMENT