20051223Protective agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN
CASSIA GULCH WIND PARK, LLC AND CASSIA WIND FARM, LLC,
IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
This Protective Agreement is entered into thiscl.:3 day of December 2005 by Cassia
Gulch Wind Park, LLC and Cassia Wind Farm, LLC (Cassia Wind), Idaho Power Company and
the Idaho Public Utilities Commission Staff ("Staff'
Recitals:
1. WHEREAS, Cassia Wind desires to make available to Idaho Power and the Staff
certain information respecting Cassia Wind's Petition to determine exemption status (Case No.
IPC-05-35).
2. WHEREAS, Idaho Power and Staff desire to receive such information.
3. WHEREAS, Cassia Wind , Idaho Power and Staff anticipate that Cassia Wind
may provide, or make available for review, certain information considered by Cassia Wind 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.).
4. WHEREAS, Cassia Wind, Idaho Power and Staff anticipate that Cassia Wind
may provide, or make available for review, certain information considered by third parties 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.) for which Cassia Wind has an obligation, pursuant to a duly authorized
confidentiality agreement between Cassia Wind and each of said third parties, to protect said
information.
5. WHEREAS, Cassia Wind , Idaho Power and Staff agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary
protection to Cassia Wind', Idaho Power s and Staffs 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 BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (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 Cassia Wind 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-05-35 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
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.
protected from unauthorized public disclosure.
Such information will be clearly marked and
(d) Nondisclosure Agreement.
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. Such agreement shall be delivered to
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
counsel for Cassia Wind and acknowledged and approved by Cassia Wind before disclosure is
made.
2. (a) Copies
No copies or transcriptions of the Confidential Information shall be made by Staff
and/or Idaho Power 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 Cassia Wind, all original documents and copies of the Confidential
Information shall be: 1) returned to Cassia Wind, 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 Cassia Wind within thirty (30) days after final
settlement or conclusion of the proceedings before the Commission which Confidential
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
Cassia Wind, be either returned to Cassia Wind or, at the option of the recipient, destroyed.
3. Nonwaiver of Objection 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.
4. Challenge to Confidentialitv
(a)Initial Challenge
This Protective Agreement establishes a procedure for the expeditious handling of
information Cassia Wind claims is confidential. In any proceeding before the Commission, Staff
and/or Idaho Power may challenge the characterization of any information, document, data or
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
study claimed by Cassia Wind to be a trade secret, proprietary or confidential information. If
seeking to challenge the confidentiality of any information Staff and/or Idaho Power shall first
contact counsel for Cassia Wind 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)Subsequent Challenge.
In the event that the parties cannot agree as to the character of the information
challenged, Staff and/or Idaho Power may challenge the confidentiality of the information
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 non-confidential by Staff and/or Idaho
Power.
(c)Challenge Hearing
Staff and/or Idaho Power 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 Cassia Wind, Idaho Power/Staff 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, Staff and/or Idaho Power 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 Cassia Wind consents to such conduct. This procedure enables the
providing party to seek a stay or other relief from the Commission s Order removing the
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
restrictions of this Agreement from material claimed to be confidential. Such relief may be
sought from the Commission or a court of competent jurisdiction.
S. (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 Staff and/or Idaho Power 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
Cassia Wind 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)(1) 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, which copy shall be supplied by the providing party.
The copy of the documents to be placed in the sealed record shall be(4)
tendered by counsel for Cassia Wind 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'
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 Hearing 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
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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
portion of the sealed record has been designated by the appealing party as necessary to the record
on appeal.
6. Destruction ror Returnl
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 (shall be returned to counsel for the
providing party J within thirty (30) days after final settlement or conclusion of this matter
including administrative or judicial review thereof.
7. 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
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
them only to individuals who likewise signed Exhibit "
8. Summary of Record
If deemed necessary by the Commission , Cassia Wind shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
9. This Protective Agreement shall become effective on the date hereof.
DA TED this ~-s
..",p
day of December 2005.
CASSIA WIND LLC IDAHO POWER COMPANY~tL:-
Barton L. Kline
Senior Attorney
1221 West Idaho Street
Boise, ill 83702
Dean J. Miller
McDevitt & Miller LLP
PO Box 2564
Boise, ill 83701-2564
Attorneys Representing
Cassia Gulch Wind Park, LLC
and Cassia Wind Farm, LLC
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By
Scott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ill 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Sent By: MCDEVITT & MILLER LLPj 208 336 6912 Dec-22-05 10:37AMj Page 2/2
them only to individuals who likewise signed Exhibit "
8. Summary of Record
if deemed necessary by the Commission, Cassia Wind shall prepare a written
summary of the Confidentiallnfonnation refeITed to in Orders to be issued to the public and the
parties.
9. This Protectivc Agreement shall become effective on the date hereof.
DATED this f..- '1-day ofDectm1b~r 2005.
CASSIA WIND LLC IDAHO POWER COMPANY
(\ ~ ~
. VlL-
McDevitt & Miller LLP
PO Box 25M
Boise, ID 83701-2564
Barton L Kline
Senior Attorney
1221 West Idaho Street
Boise. ill 83702
Attorneys Representing
Cassia Gulch Wind Park, LLC
and Cassia Wind Fann. LLC
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Scott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, iD 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AC~EEMF-NT BETWEEN
CASSIA WIND. IDAHO POWER COMPANY AND
IDI\HO PUBLIC UTILITIES COMM ISSION STAFF
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this day of December
2005 in Case No. IPC-05-35 and agree to be bound by the terms and conditions of such
Agreement.
Name
Employer or Firm
Business Address
Party
Date
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 23rd day of December
2005 in Case No. IPC-05-35 and agree to be bound by the terms and conditions of such
Agreement.
Ei ,1-,
RICK STERLING
IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
/2.-/2-3/15
Date
PROTECTIVE AGREEMENT BETWEEN
CASSIA WIND, IDAHO POWER COMPANY AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF