20051202Protective agreement.pdf

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PROTECTIVE AGREEMENT
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This Protective Agreement is entered as of the 22s~ay Of
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by Idaho Power Company, the Idaho Public Utilities Commission Staff ("Staff) and the
undersigned Intervenors in Case No. IPC-05-28 (hereinafter collectively referred to as the
Parties" or individually as a "Party
Recitals:
WHEREAS, Idaho Power desires to make available to the Parties certain
information respecting Idaho Power s Application for authority to increase its rates and charges
for electric service to electric customers in the State of Idaho. (Case No. IPC-05-28).
WHEREAS the Parties desire to receive such information.
WHEREAS Idaho Power and the Parties anticipate that Idaho Power
may provide, or make available for review, certain information considered by Idaho Power to be
of a trade secret, privileged or confidential nature (as defined in Idaho Code 9 9-340 et seq. and
9 48-801 et seq.).
WHEREAS, Idaho Power and the Parties agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary
protection to Idaho Power s and the Parties' employees and/or representatives in this 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 hereafter.
PROTECTIVE AGREEMENT - 1
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
(a)Confidential Information.
All documents, data, information, studies and other materials furnished that are
claimed to be of trade secret, proprietary or confidential nature (herein referred to as
Confidential Information ) shall be so marked by Idaho Power by stamping the same with a
designation indicating its trade secret, proprietary or confidential nature and printed on "colored"
paper. 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 31.01.01.067 and 31.01.01.233. Access to and review of Confidential
Information shall be strictly controlled by the terms of this Agreement.
(b)Use of Confidential Information.
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 for purposes of business or competition or any purpose other than the
purpose of preparation for and conduct of Case No. IPC-05-28 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.
(c)Persons Entitled to Review.
Individual 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 A to this Agreement. Such information will be clearly marked
and protected from unauthorized public disclosure.
PROTECTIVE AGREEMENT - 2
(d)Nondisclosure Aereement.
Confidential Information shall not be disclosed to any person who has not signed
a nondisclosure agreement on this form, which is attached hereto as Exhibit "A" and
incorporated herein. The nondisclosure 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. The
Agreement shall contain the signatory s full name, permanent address and employer.
(e)Challenee to Company Denial of Access
Any disputes arising as a result of Idaho Power s denial of access to Confidential
Information shall be resolved by the Idaho Public Utilities Commission ("Commission
(a)Copies
No copies or transcriptions of the Confidential Information shall be made by the
Parties except as necessary to make the information available to individuals who have executed
an Exhibit "A" to this Protective Agreement.
(b)Return of Confidential Information.
Upon request of Idaho Power, all original documents and copies of the
Confidential Information shall be: 1) returned to Idaho Power, or 2) shredded by the holder of
such documents.
Unless otherwise ordered, Confidential Information, including transcripts or
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 likewise, be returned to counsel for Idaho Power within thirty (30) days after final
settlement or conclusion of the proceedings before the Commission which Confidential
PROTECTIVE AGREEMENT - 3
Information is relevant including administrative or judicial review thereof. After return of
documents pursuant to this paragraph, and upon request, a written receipt verifying return shall
be provided by counsel.
(c)Return of Notes.
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
of Idaho Power, be either returned to Idaho Power or, at the option of the recipient, destroyed.
Nonwaiver of Objection 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.
Challenee to Confidentiality.
(a)Initial Challenge
This Protective Agreement establishes a procedure for the expeditious handling of
information Idaho Power claims is confidential. In any proceeding before the Commission, a
Party may challenge the characterization of any information, document, data or study claimed by
Idaho Power to be a trade secret, proprietary or confidential information. If seeking to challenge
the confidentiality of any information Staff shall first contact counsel for Idaho Power and
attempt to resolve any difference by stipulation. Resolution may include removing the
confidential classifications, creating a non-confidential summary, reformatting the information
etc.
PROTECTIVE AGREEMENT - 4
(b)Subsequent Challenee
In the event that the parties cannot agree as to the character of the information
challenged , the Parties may challenge the confidentiality of the information by petitioning in any
proceeding in which the information is relevant the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all parties to the proceeding
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 nonconfidential by Staff.
(c)ChalleDl?:e Hearine.
The Parties 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 Idaho Power and the Commission. The record of the
in camera hearing shall be marked "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.
(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 Act. (Idaho Code 9 9-335 et seq.) If information is found to
be not exempt from disclosure, the Parties shall not disclose such challenged material or use it in
the public record, or otherwise outside the proceedings for at least five (5) business days unless
PROTECTIVE AGREEMENT - 5
Idaho Power consents to such conduct. This procedure enables the providing Party to seek a stay
or other relief from the Commission s Order removing the restrictions of this Agreement from
material claimed to be confidential. Such relief may be sought from the Commission or a court
of competent jurisdiction.
(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 a 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 Idaho Power and shall provide copies of the used
Confidential Information 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 Information or substantive reference
to Confidential Information or substantive reference to Confidential Information described in
paragraph 5(a)(l) shall be placed in the sealed record.
(3)Only one (1) copy of the documents designated to be placed in a sealed
record shall be made.
(4)The copy of the documents to be placed in the sealed record shall be
tendered to the Commission and shall be maintained in accordance with the terms of this
Protective Agreement.
PROTECTIVE AGREEMENT - 6
(b)Seal.
While in the custody of the Commission, materials containing Confidential
Information shall be marked "CONFIDENTIAL -- SUBJECT TO A TTORN,EY'
CERTIFICATE OF CONFIDENTIALITY" and shall not be examined by any person except
under the conditions set forth in this Agreement, if applicable.
(c)In Camera Hearine 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 Information (or that portion of the record
containing Confidential Information) shall be marked and treated as provided herein for
Confidential Information. See IDAPA 31.01.01.287.
(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)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 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
PROTECTIVE AGREEMENT - 7
portion of the sealed record has been designated by the appealing party as necessary to the record
on appeal.
Destruction or Return.
Unless otherwise ordered, Confidential Information provided pursuant to a
discovery request and this Agreement, including transcripts of any discovery depositions 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 be destroyed or shall be returned to
counsel for the providing Party within thirty (30) days after final settlement or conclusion ofthis
matter, including administrative or judicial review thereof.
Use in Pleadings
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 serviced only on counsel of record who have signed the non-disclosure 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 "A."
Summary of Record
If deemed necessary by the Commission, Idaho Power shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
PROTECTIVE AGREEMENT - 8
Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
instrument.
10.This Protective Agreement shall become effective on the date first above
written.
s.t'
DA TED this day of , 2005.
IDAHO POWER COMPANY
By:rJJi Barton L. Kline
1221 West Idaho Street
Boise, Idaho 83702
By:
Donald L. Ho ll, II
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
By:
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Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorneys Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT - 9
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated
2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
Printed Name
Signature
Employer or Firm
Business Address
Party
Date
EXHIBIT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated 1 i
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2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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EXHIBIT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated
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2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated ~ r t,.r;
2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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EXHI BIT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated
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EXHIBIT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated
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Agreement.
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EXHIBIT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated 1/2C?/;2.0()S"
2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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EXHI BIT A
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I have reviewed the foregoing Protective Agreement dated \\1~~/o5"
2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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EXHIBIT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated
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Agreement.
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated
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Agreement.
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated v. 2,, 2.DOr:)
2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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EXHII3IT A
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated /'Je V J~ .200-5
2005 , in Case No. IPC-05-28 and agree to be bound by the terms and conditions of such
Agreement.
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