20190905Protective Agreement.pdf

ldaho Public Utilities Commission
Otfice of the Secretary
RECEIYED
sEP s - 20t9
Boise, ldahoPROTECTIVE AGREEMENT
BETWEEN
AVISTA UTILTTIES AND
IDAHO PUBLIC UTILITIES COMMISSION STA
(AND OTHER PARTIES AS APPLICABLE)
FF.
This Protective Agreement is entered into this Tthday of August by Avista Utilities and
the Idaho Public Utilities Commission ("Staff'), in connection with Case No. AVU-E-t9-09.
Recitals:
l. WHEREAS, Avista Utilities and the Idaho Public Utilities Commission Sraff
(hereinafter "Staffl') anticipate that parties to this proceeding may make reguests 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 $$ 74-107 tkough 74-109 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
Infbrmation which might be provided during the course of the proceedings, now therefore.
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a)Confi dential Information
All documents, data, infbrmation, studies and other materials furnished pursuant to any
requests for information, subpoenas or other modes of discovery (formal or infbrmal), 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 confldential 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 clairn. IDAPA 31.01.01.233.
PROTECTIVE AGREEMENT I
(b) Protection of Confidential Information
Acccss to and rcview 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 fbrth in Exhibit "A."
(c) Use of Confidential Information
All persons who may be entitled to revicw, or who are afforded access to any Confidential
Information by reason of this Agreement shall neither use nor disclose the Confidential Information
for purposcs 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 Agreemcnt.
(d) Persons Entitled to Review
Access to Confidential Information shall bc limitcd 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 infbrmation will be clearly marked and protected from
unauthori zed publ i c di sclosure.
(e) Non-disclosure Aqreement
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 incorporatcd hcrcin.
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 certify in writing that he or she has
reviewed the same and has consented to be bound by its terms. I'he 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. Corrics
No copies or transcriptions of the Confidential lnformation shall be made by the recipient
except as neoessary to make the information available to individuals who have executed an Exhibit
"A" to this Protective Agreement.
PROTECTIVE AGREEMENT 2
3. Non-waiver of Obicction to Admissibilifv
The flrnishing of any document, infbrmatiorr, 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 Cornmission,
4, Challenee 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 ditference by stipulation.
Resolution may include removing the confidential classiflcations, creating a non-confidential
summary, reformatting the information, etc.
(b) SubsequentChallenee
In the event that the parties cannot agree as to the character of the infbrmation 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. l'he 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) Challense Hearins
The challenging party shall request that the Commission conduct an in camera proceeding
w'here 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 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 AGREEMEN'|J
(d) Determination
Thc parties will ask the Commission to issue an Order determining rvhether any challenged
information or material is not properly deemed to be exempt tiom public disclosure pursuant to the
Idaho Public Records Act(ldaho Code $$74-101through 74-126). If information is found to be not
exempt fiom 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 uri sdiction.
5. (a) Receirrt 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 Intbrmation supplied to it under this
Agrcement, it shall give reasonable prior notice of such intention to the
providing party and shall provide copies ofthe used Confidential Infonnation
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 of the used Confidential Infbrmation or substantive reference to
Confidential Information or substantive reference to Confidential Information
described in paragraph 5(aXl) 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 cuslody of the Commission, materials containing Confidential lnformation shall
be marked "CONFIDENTIAL - SUBJECT TO ATTORNBY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any pcrson except under the conditions set
forth in this Agreement, if applicable.
4PROTECTIVE ACREITMENT
(c) .Ir Canera Hearing and TranscriDts
Any Confidential Intbrmation 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 Infbrmation (or that portion of the record containing Confidential
Information) shall be marked and treated as provided herein for Conlldential 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 of the Commission and/or the
final order of a court having final jurisdiction.
(e) Arrpeal
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 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 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
Confidcntial Information contained thercin. Any use of or substantivc 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 seclion 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 Iikewise signed Exhibit
orAtt.
PROTECTIV[ AGREDMINT )
7. Summarv of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential lnfurmation referred to in Orders to be issued to the public and the
parties.
8. Return or Destruction of Confidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Infonnation 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 administrative or judicial review thereof, Afler return or destruction of documents
pursuant to this paragraph, and upon request, a written receipt veriffing retum or destruction shall be
provided by counsel.
(b) On a case-by-case basis and upon notification to the utility, the Commission StalT
may retain one copy of the Confrdential Infbrmation under seal. Notwithstanding any other
provision in this Agreement, any member of Staff may review and use that copy of the Confldential
Information outside this proceeding while performing his or her duties as a Staff member. Stafl's
use and disclosure of the Confidential Irrfbrmation 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 Agreernent shall, upon request of the
providing party, be either returned to the providing party or, at the option of the recipient, destroyed.
9. Effe Date
This Protective Agreement shall become effective on the date hereof.
6PROTECTIVE AGREEMINT
DATED this 7th day of August, 2019.
AVIS'TA UTILITIES
Meyer
Avista Corporation
P.O. Box 3727
l4ll E. Mission Ave.
Spokane, WA99220-3727
Vice President and Chief Counsel of Regulatory and Govcrnment Affhirs
Avista Corporation
IDAHO PUBLIC UTILTTIES COMMISSION STAFF
By d&,*L( t/x/r't
Edrvard Jftell
Depury AttYrney Ceneral
ldaho Public Utilities Comrnission
472 West Washington Street
Boise, ID 83702
Aftorney Representing
Idaho Public Utilities Cornmission StafT
7PROTECTIVE AGREEMENT
EXIIIBIT ..A''
I have revieu,ed the foregoing Protective Agreernent dated AugustTtt',2019, in Case No. AVU-E-19-
09 and agree to be bound by the terms and cortditions of such Agreement.
John Deputy (lencral
Public Utilities Conrmi ssion
Employer or Firnr
472 W . Washington S1rcet, Boise. ID S:;OZ
Business Address
Corrmission Staff
Party
atd E ;",1
Date
8PROTEC-| IVIJ AGI{DI]MI]NT
.)
EXI{IBIT ,.A''
I have revierved the foregoing Proteclive Agreement dated August 7'h,2019, in Case No. AVU-E-19-
09 and agrce to be bound by the terms and conditions of such Agreemcnt.
Puhlic I Itil ities Commission
Employcr or Firm
47?W . Washrncton Street. Boise. ID 83702
Business Address
Cnmmission Staff
Party
* /r/t r
Date
IPROTECTIVE ACREEMENT
EX}IIBIT "A"
I have reviewed the foregoing Protective Agreement dated August 7rh,2019, in Case No. AVU-E-19-
09 and agree to be bound by the terms and conditions of such Agreement.
Pub I ic Urilities Commi ssion
Employer or Firm
472W. Washinslon Street. Boise. ID 83702
Business Address
Commission Staff
Party
t+vqr*d* f ,)a l*)Dati t)
IPROTECTIVE ACREEMENT
'1$#**-ffi"{J,*"-
r"ttti Sto&lton
I
EXHIBIT "A"
I have reviewed thc forcgoing Prolective Agreement dated August 7tl',2019, in CaseNo. AVU-E-19-
09 and agree to be bound by the terms and conditions of such Agreernent.
Jolene
Public Utilities Commission
Employer or Firm
472W. Washinston Slreet. Boise.lD 83702
Business Address
Commission Staff
Party
Date
IPROTECTIVE AGREEMENT
BXHIBIT (A''
I have revierved thc foregoing Protectivc Agrecment dated August 7th, 2019, in Case No. AVU-E-19-
09 and agree to be bound by the terms and conditions oisuch Agreement.
Travis Culbe(son
Public Utilities Commission
Employer or Finn
472W. Washinston Street. Boise. tD 83702
Business Address
Commission Staff
Party
8t Z3L
Date
IPROTECTIVE ACREEMENT
EXHIBIT ..A'
I have reviewed the foregoing Protective Agreement dated August ?d', 2019, in Case No. AVU-E-19-
09 and agree to be bound by the terms and conditions of such Agreement.
Rick
Public Utilities Commission
Employer or Firm
472 W . Washinston Street.. rD 83702
Business Address
Commission Staff
Party
t{q I rq
Datc
8PROTECTIVE AGREEMENT