20200805Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN
AVISTA UTILITIES AND
IDAHO CONSERVATION LEAGUE CORPORATION
(AI\D OTHER PARTIES AS APPLICABLE)
This Protective Agreement is entered into this fth day of Aupst by Avista Utilities
and the Idaho Conservation League, in connection with Case No. AvU-E-19-01.
Recitals:
1 WIIEREAS, Avista Utilities and the ldaho Conservation League anticipate that parties to
this proceeding may make requests to provide, or make available for review, certain informalion,
considered by its custodian to be ofa trade secret, privileged or confidential nature (as defined in
Idaho Code $$ 74-107 through 74-109 and 48-801).
2. WHEREAS, Avista Utilities and the undersigned parties agree that entering into a
Protective Agreement will expedite the production ofdocuments; 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
fbrth clear cut parameters for use of Confidential Information. and will prot€ct Confidential
Information which might be provided dudng the course ofthe proceedings, now therefore,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
r' (a)Confidential Information
All documents, data, information, studies and other materials furnished pursuant to any
requests for information, subpoenas or other modes ofdiscovery (formal or informal). and including
depositions, that are claimed to be oftrade secret, proprietary or confidential nature (herein referred
to as "Confidential lnformation") shall be so marked by the party or entity providing the infbrmation
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 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.
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PROTECTIVE AGREEMENT
(b)Protection of Confidential Information
Access to and review ofConfidential Information shall be strictly controlled bythe 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 lnformation
for purposes ofbusiness or competition, or any purpose other than the purpose ofpreparation for and
conduct ofthe proceedings, and then solely as contemplated herein, and shall keep the Confidential
lnformation secure as trade secret, confidential or proprietary information and in accordance with the
purposes and intent ofthis Agreement.
(d)Persons Entitled to Review
Access to Confidential Information shall be limited to counsel ofthe 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.
(e) Non-disclosure Aqreement
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 "A" shall require the person to whom disclosure is to be
made to read a copy of this Protective Agreement and to certifu 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. Cooies
No copies or transcriptions ofthe Confidential lnformation 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.
2PROTECTIVE AGREEMENT
3. Non-waiver of Obiect ion 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 ofthe providing party to object to its
relevance or admissibility in any proceedings before this Commission.
4. Challense to Confidentialitv
(a)Initiel Chellenqe
This Protective Agreement establishes a procedure for the expeditious handling of
information that a party claims is confidential. Any party may challenge the characterization ofany
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 ofany 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
summary, reformatting the information, etc.
(b)Subseouent Challenee
In the event that the parties cannot agree as to the character of the information challenged,
any parly 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) QallgnSe Hearins
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 "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'
JPROTECTIVE 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 Rec ords Act (ldaho Code gg 74- l0l through 74- 126). If information is found to be nor
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
ccmpetent jurisdiction.
s. (a)Receiot 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 parfy and shall provide copies ofthe used Confidential Information
or substantive reference to Confidential Information only to the providing
party, and such other parties, ifany, who have executed an Exlibit "A" to this
Protective Agreement.
(2) One (l ) copy ofthe used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential Information
described in paragraph 5(a)( I ) 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 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
4PROTECTIVE AGREEMENT
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
forth in this Agreement, ifapplicable.
(c)1@
Any Confidential Information that must be orally disclosed at a hearing in the proceedings
shalf 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 ofthe 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 inlormation and use ofthe court. Ifa portion ofthe record is forwarded to a
court under seal for the purposes ofan appeal, the providing party shall be notified which portion of
the sealed record has been designated by the appealing party as necessary to the tecord on appeal.
6, Use in Pleadinss
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 ofor 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 shalI be served only on counsel ofrecord
who have signed the nondisclosure agreements set forth in Exhibit "A" attached to this Protective
5PROTECTIVE AGREEMENT
Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
7. Summarv of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary ofthe 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) retumed to the providing party; or (2) or at the option ofthe
recipient destroyed within thirty (30) days after the final settlement or conclusion ofthe proceedings,
including administrative or judicial review thereof. After retum or destruction of documents
pursuant to this paragraph, and upon request, a written receipt verifting retum or destruction shall be
provided by counsel.
(b) On a case-by-case basis and upon notification to the utility, the ldaho Conservation
League may retain one copy ofthe Confidential Information under seal. Notwithstanding any other
provision in this Agreement, any member ofthe ldaho Conservation League may review and use that
copy ofthe Confidential Information outside this proceeding while performing his or her duties as a
the Idaho Conservation l,eague member. Idaho Conservation League's use and disclosure ofthe
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 ofthe Confidential Information provided under this Agreement shall, upon request ofthe
providing party, be either retumed to the providing party or, at the option ofthe recipient, destroyed.
9. Effective Date
This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT 6
DATED this 5th dayof Aueust ,2020.
AVISTA UTILITIES
/s/David Mever
David J. Meyer
Avista Corporation
P.O. Box 3727
141 I E. Mission Ave.
Spokane, WA 99220-3727
Vice President and ChiefCounsel of Regulatory and Govemment Affairs
Avista Corporation
IDAHO CONSEREVATION LEAGUE
Eo* Ob
Benjamin Otto
Ener$/ Associate
Idaho Conservation League
PO Box 844, Boise, ID 83701
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EXHIBIT "A''.
I have reviewed the forcgoing Protective Agreement datd -2020 in Case No.
AYU-E-I 9-0 I and agree to be bound by the terms and conditions of such Ageement.
Name
Employer or Firm
Business Address
Party
Date
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