20180223Protective Agreement 2.pdf

P.ICIIVED
PROTECTIVE AGREEMENT
BETWEEN
IIYDRO ONE (acting through its acquisition subsidiary Olympus Equity tLq, "Td ., I ^ , _ .,AVISTACORpORATIONAITD , _,,,,toliUii
CLEARWATER PAPER CORPORATION
(AND OTHER PARTIES AS APPLICABLE)
rN cAsE NO. AVU-17-09/AVU-G-17-05
This ProtectiveAgreement is entered intothis-..lghayofDecember 2017byHydro One
(acting through its acquisition subsidiary Olympus Equity LLC) (hereafter "Hydro One"), and Avista
Corporation (hereafter "Avista") and the Clearwater Paper Corporation (hereafter "Clearwater"), in
connection with Case No. AVU-E -17 -09 / AVU-G- 1 7-05.
Recitals:
l. WHEREAS, Hydro One and Avista and 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 ftade secret ptivileged or confidential nature (as defined in
Idaho Code $$ 74-107 through 74-109 and48-801).
2. WIIEREAS, Hydro One and Avista and the undersignedparties agree that entoing into a
Protective Agreement will expedite the production of documents; will afford the necessary protection
to Hydro One and Avista and the undersigned parties' employees and/or representatives in the
proceeding who might review the information and subsequently be requested to reveal its contents by
setting forth clear cut parameters for use of Confidential Information and Highly Confidential
Information, both as defined below, and will protect Confrdential Information and Highly
Confidential Information which might be provided during the course of the proceedings, now
therefore,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
l. This.Asreement Governs
This Agreement governs all access, review, use, and disclosure ofanymaterial designated by
the parties to this Agreement as Confidential Information or Highly Confidential lnformation, as
defined below, in this proceeding.
2. Confrdential and Hiehlv Confidential Information
(a) Confidential Information
"Confi dential lnformation" is information that:
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i. falls within the scope of Idaho Code gg 74-107 ttuough 74-109 and 48-801 (trade
secret, proprietary, privileged and/or other confidential information); and
ii. is not publicly available.
(b) Hiehlv Confidential Information
"Highly Confidential Information" is information that:
i. falls within the scope of Idaho Code $$ 74-107 tluough 74-109 and 48-801 (tade
secret, proprietary, privileged and/or other confidential information);
ii. is not publicly available; and
iii. is Confidential [nformation to which even more restricted access is necessary to
ensure the information is not disclosed to the detriment of the provider (or the
party designating the information as confidential, if not the provider).
(c) Desis4ation of Confidential Information and Hishlv 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 secre! proprietary or confidential nature (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 trade secret, proprietary or confidential nature
and printed on "yellow" paper. IDAPA 31.01.01.067.
"Highly Confidential lnformation" shall be so marked and printed on "green" paper.
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 zupportthe
claim. IDAPA 3 1.01.01.233.
(d) Protection of Conlidential Information and Hiehlv Conlidential Information
Access to and reviewof Confidential Information and Highly Confidentiallnformationshall
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."
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"Highly Confidential lnformation" will be provided in hard copy only or otherwise made
available for viewing at a time and place agreed upon by the parties. [t may not be duplicated, or
otherwise distributed electronically. Parties must store the *Highly Confidential Information" in a
locked room or cabinet dedicated to the storage of "Highly Confrdential Information".
(e) Use of Confidential Information and Hishlv Confidential Information
All persons who may be entitled to review, or who are afforded access to any Confidential
Information (hereaffer, unless otherwise noted, including "Highly Confidential lnformation") by
reason of this Agreement shall neither use nor disclose the Confidential Information for purposes of
business or competitiotL or any purpose other than the purpose ofpreparation 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.
(f) Persons Entitled to Review
Access to Confidential Information shall be limited to counsel of the undersigned parties,
employees, experts, agents or representatives of the r:ndersigned parties, who have executed an
Exhibit "A" to this Agreement and who have a legitimate and non-competitive need for the
Confidential Information and not simply a general interest in the information. Such informationwill
be clearly marked and protected from unauthorized public disclosure.
(g) Non-disclosureAereement
Confidential Information shall not be disclosed to any pe$on who has not signed a non-
disclosure agreement on this form, which is attached hereto as Exhibit "A" and incorporated herein.
The non-disclosure agteement 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 terrrs. 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.
3. Cooies
No copies or transcriptions of the Confidential Information shall be made by the recipient
except as necessary to make the information available to indMduals who have executed an Exhibit
"A" to this Protective Agreement.
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4. Non-waiver of Obiection to Admissibilitv
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.
5. Challense to Confidentialitv
(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
sr,mlmary, reformatting the information, etc.
(b) Subseouent Challense
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) Challenge Ilearine
The challenging party shall request that the Commission conduct arr 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 camera hearing shall be maTked "CONFIDENTIAL - Subject to Protective 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.
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(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
Idalro Public Records Act(Idaho Code $$ 74-101 through 74-126). If informationis fourdto benot
exempt from disclosure, no parfy 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 procedr:re enables the restrictions of this Agreement frorn
material claimed to be confidential. Such relief may be sought from the Commission or a court of
competent j uri sdiction.
6. (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 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 "A" to this
Protective Agreement.
(2) One (l) copy of theused ConIidential Informationorsubstantivereferenceto
Confidential Information or substantive reference to Confidential Information
described in paragraph 6(a)(1) shall be placed in the sealed record.
(3) The copy ofthe documents to be placed in the sealed record shall be tendered
by counsel for the providing party to the Cornmission, and shall be
maintained in accordance with the terms of this Protective Agreement.
(b) Seal
While in the custody ofthe Commission, materials containing Conlidential Information shall
be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY AND PROTECTM AGREEMENT" and shall notbe examined by any
person except under the conditiors set forth in this Agreement. Highly Confidential Information
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shall be marked "IIIGIILY CONFIDENTIAL - SIIBJECT TO ATTORI\IEY'S CERTIFICATE
OF CONFIDENTIALIIY ANI) PROTECTIVE AGREEMENT" and shall notbe examinedby
any person except under the conditions set forth in this Agreement.
(c) 1z Ccrzera Hearins and Transcripts
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 percons authorized to have access to the
information under this Protective Agreernent. Similarly, any transcription of any examination or
other reference to Confidential lnformation (or that portion of the record containing Confidential
lnformation) shall be marked and treated as provided herein for Confidential Information.
(d) Access to Re.cord
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) Aooeal
Should an appeal frorn 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 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 pafiy as necessary to the record on appeal.
7. Use in Pleadinqs
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 lnformation contained therein. Any use of or substantive references to Confidential
Infomration 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
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Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
..Arr.
8. 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.
9. Beturn or Destruction of Confidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Information shall be: (1) 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 adminisnative or judicial review thereof. After return or desffuction of documents
pursuant to this paragraph, and upon request, a written receipt veriffing retum or destnrction shall be
provided by counsel.
(b) Any notes maintained by a recipient of Confidential Information which embody or
reflect any of the Confidential Iuformation provided under this Agreement shall, upon request of the
providing party, be either retumed to the providing party or, at the option of the recipient, destroyed.
10. Notice of Compelled Production in Other Jurisdictions
If a signatory to this Agreement is compelled to produce Confidential Information in any
regulatory or judicial proceeding by the body conducting the proceeding, the signatory must provide
notice to the party ttrat provided the Confidential Information. Such Confidential Information must
not be produced for at least ten ( I 0) business days following notice, to permit the party that provided
the information an opportunity to defend the confidential nahue of the material before the regulatory
or judicial body that would compel production. Disclosure after that date, iu compliance with an
order compelling production, is not a violation of this Agreement.
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11. Effective Date
This Protective Agreement shall become effective on the date hereof.
DATED tni, @aay of Decembe r,2017.
K&L GATES, LLP AVISTA CORPORANON
BY BY
Elizabeth Thomas, Partter, [pro hac vice]
Kari Vander Stoep, Partner, $ro hac vice]
K&L Gates LLP
On Behalf of Hydro One Limited
.Olympus Equity LLC
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
[e-mail]
kari.vanderstoep@kl gates.com
David J. Meyer, ISB No. 8317
Chief Counsel for Regulatory and
Goverrunental Affairs
Avista Corporation
1411 E. Mission Ave., MSC-27
Spokane, WA 99220-3727
David.meyer@avistacorp. com
CLEARWATER PAPER CORPORATION
fl*-0. ltrl-,,-ny*
Peter J. Richardson
Richardson & O'Leary PLLC
515 N.27th Street
Boise, ID 83702
Representing
Clearwater Paper Corporation
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D.,
EXI{IBIT,.A,'
I have reviewed the foregoing Protective Agreement dated oecemberl!!zo l7 inCaseNo. AVU-E-I7-
09/AVU-G-17-05 and a$ee to be bound by the terms and conditions of such Agreement,
lk{\
Name
Qir,Lrnrrt^ ft,{amt fttc
Employer or Firm
5 l< fui r/1+4- g fioisz tD E {tqz-
Business Address
Wd-fu'r to/urart;
lL-t,l .Zon
Date
Party
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EXHIBIT *A',
I have reviewed the foregoing Protective Agreement dated Decembe , /? .ZOfi in Case No. AVU-E-I7-
09/AVU-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Name
Q.ichar,d.sn lcuu
Employer or Firm
5t5 N L* ,9r I& lD Butrz-
Business Address
w
Parfy
Date
PROTECTIVE AGREEMENT
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fi,
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EXIIIB T '6A''
I havo rwiemedtbs forwoing ProEottvo Agreonmt datedDocemkr l,l ,2Ot7 in CascNo. AVU.El7-
09/AVLr4-17-05 and agrcc to bc bomd by thc tersrs and conditions of srroh Agromcnt
Name"*-:D*q
7"* Slrwoon /|cbo.
EmployerorFirm
zo?o //
Bushess Addresg
I
Party
Date
I
PROTECTTVE AGREEMENT
5(,08480f, vl6
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14 r{ / zort
EXHIBIT "A"
I have revierved the tbregoing Protective Agreement dated December_, 2017 inCaseNo. AVU-E-17-
09/AVU-G-17-05 and agree to be bound by the terrns and conditions of such Agreement.
Marvin A. Lewallen
Name
M. A. Lewallen & Assoc.
Employer or Firm
7408 SW Mapleleaf St, Portland, OR 97223
Business Address
Clearwater Paper
Party
December 14,2017
Date
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EXIilBIT "A''
I have reviewed the foregoing Protective Agreement dated December_, 2017 in Case No. AW-E-17-
09/AW-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
ItL -V*,'A
Name
L\cdr- ,.},.ar C-or ol^ c'-t'otf
Employer or Firm
Bos /N(t Q.oA . /-ct,ts4on 9D 635ot
Business Address
Parfy
Date
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EXIIIBIT "A'
Name
r ra{r
Employer or Fimr
Business Address
t?- tg' lf
Date
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I have rcviewod the forogoing horcstive Agreunent dated December 4 2017 in Case No. AVU-B I 7-
09/AVU.G-17{5 and agree to be bound by the terms and conditions of such Agreement
fr,;) hn ,n -
EXHIBIT (A"
I have reviewed the foregoing Protective Agreement dated Decsmb€t
-,
2017 in Case No, AW-E- l7-
09/AVU-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Name
Employer or Firm
60t t/ [,tru,r;lr4rrc +ttoo
Business Address fto r
Parly
/2 g b/
Date
PROTECTIVE AGREEMENT
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