20070105Protective agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN
IDAHO POWER COMPANY,
HOT SPRINGS WINDFARM LLC AND \D/\j-iO r:'UGLlC
IDAHO PUBLIC UTILITIES COMMISSION strVtEUfIES CO;',\~/i!SS!O:
RECEIVED
2001 JMi -5 PM 4: 40
This Protective Agreement is entered into this pvfi;day of January 2007 by Idaho Power
Company ("Idaho Power" or "the Company ), Hot Springs Windfarm LLC ("Hot Springs ) and the Idaho
Public Utilities Commission Staff ("Staff'
Recitals:
I. WHEREAS, Idaho Power and Hot Springs desire to make available to the Staff and
other pal1ies signing this document ("Pmiy" or "Parties ) cel1ain information respecting Idaho Power
application for approval of a Firm Energy Sales Agreement for the sale and purchase of electric energy
between Idaho Power Company and Hot Springs (Case No. IPC-06-34), including, but not limited to
information furnished by Hot Springs to support its claim to entitlement to published rates.
2- WHEREAS, Staff and other Pal1ies desire to receive such information.
3- WHEREAS, Idaho Power, Hot Springs and Staff anticipate that Idaho Power may
provide, or make available for review, certain information, considered by Hot Springs 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, Idaho Power, Hot Springs, Staff and other Parties agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary protection to
Idaho Power , Hot Springs 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 specific
parameters for use of Confidential Information, and will protect Confidential Information which might be
provided hereafter
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a) Confidential Information
All documents, data, infonnation, 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 or Hot Springs by stamping the same with a designation indicating its trade
secret
, ,
proprietary or confidential nature and printing the same 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 supp0l1 the claim- IDAPA 31.01.01.067 and
PROTECTIVE AGREEMENT -
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
Infonnation in accordance with 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-06-34 and then solely as contemplated herein, and shall keep the Confidential
Infonnation 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 must be approved by Idaho Power (after
consultation with Hot Springs) and 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.
(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 counsel for Idaho Power and
acknowledged and approved by Idaho Power after consultation with Hot Springs and before disclosure is
made.
(e) Challenge to Company Dcnial of Access.
Any disputes arising as a result of Idaho Power s denial of access to Confidential
lnfonnation shall be resolved by the Idaho Public Utilities Commission ("Commission
2. (a) Copies.
No copies or transcriptions of the Confidential lnfonnation shall be made by Staff or other
Parties except as necessary to make the information available to individuals who have executed an
Exhibit "A" to this Protective Agreement. Such infonnation will be clearly marked as Confidential and
protected from unauthorized public disclosure.
PROTECTIVE AGREEMENT - 2
(b) Return of Confidential Information
Upon request of Idaho Power or Hot Springs, all original documents and copies of the
Confidential Information shall be: I) returned to Idaho Power or, with Idaho Power s consent, returned
directly to Hot Springs, 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 or, with Idaho Power s consent, directly to Hot Springs within thirty (30) days after final
settlement or conclusion of the proceedings before the Commission which Confidential Information was
disclosed , 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 or
Hot Springs, be returned to Idaho Power or, with Idaho Power s consent, directly to Hot Springs 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.
Challenge to Confidentiality
(a) Initial Challenge
This Protective Agreement establishes a procedure for the expeditious handling, of
information Idaho Power or Hot Springs claims is confidential. In any proceeding before the
Commission, Staff or a Pal1y may challenge the characterization of any information, document, data or
study claimed by Idaho Power or Hot Springs to be a trade secret, proprietary or confidential information.
If seeking to challenge the confidentiality of any information Staff or a Party shall first contact counsel
for Idaho Power or Hot Springs 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 or a Party may challenge the confidentiality of the information by petitioning the Commission, in
any proceeding in which the information is relevant, to rule upon the disputed information. The Petition
PROTECTIVE AGREEMENT - 3
shall be served upon the Commission and all parties to the proceeding who have signed an 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 Hearing
The challenging Party shall request that the Commission conduct an in camera proceeding
where only those persons duly authorized to have ~ccess 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, Hot Springs and the Commission. The record of the
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 challenging paliy 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 receiving party 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 Idaho Power or Hot
Springs cQnsents 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:
(I)If Staff or 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 Hot Springs and
shall provide copies of the Confidential Information or substantive reference
Confidential Information only to the providing party, and such other parties, if
(2)
any, who have executed an Exhibit "to this Protective Agreement
One (I) 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.
PROTECTIVE AGREEMENT - 4
(4 )
Only one (I) 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 tendered by
counsel for Idaho Power or Hot Springs to the Commission, and shall be
maintained in accordance with the terms of this Protective Agreement.
(3)
(b)Seal.
While in the custody of the Commission, materials containing Confidential Information
shall be marked "CONFIDENTIAL - - SUBJECT TO ATTORNEY'S CERTIFICA TE
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set forth in
this Agreement, if applicable.
(c)/11 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 examin~tion 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 IDAP A 3 1.01.01.287.
(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 pm1ies or
after notice to the pm1ies 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 p0l1ion of the record is forwarded to a court under seal
for the purposes of an appeal , the providing paliy shall be notified which p0l1ion of the sealed record has
been designated by the appealing pal1y as necessary to the record on appeaL
6. 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 returned to counsel for the providing pmiy within thiliy (30) days after final
settlement or conclusion of this matter, including administrative or judicial review thereof.
PROTECTIVE AGREEMENT - 5
7. Use in P1eadin1!s
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
Infollllation 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 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 "
Summary of Record
If deemed necessary by the Commission, Idaho Power or Hot Springs shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the paJ1ies.
9. Counterparts
This Agreement may be executed in counterparts and each signed counterpal1 shall constitute
an original document.
10. This ProtectivE Agreement shall become effective on the date hereof
DATED this ~day of January 2007.
IDAHO POWER COMPANY
~(~
Bal10n L. Kline
Attollley
Idaho Power Company
122 I West Idaho Street
Boise, Idaho 83702
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Scott Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise , ID 83702
'/06/t;'7
Attollley Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT - 6
HOT SPRINGS WINDFARM LLC
~'"
\tL
Dean J. Miller
Attorney for Hot Springs
McDevitt & Miller LLP
420 W. Bannock
Boise, ID 83701
PROTECTIVE AGREEMENT - 7
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated January
~1(7J-, 2007 in Case No.
IPC-06-34 and agree to be bound by the terms and conditions of such Agreement, provided
that the provisions of Sections 4 (Challenge to Confidentiality) and 5(a) (Receipt into Evidence),
applicable to IPUC Staff, shall also be applicable to me, as the representative of the below-
referenced Party.
~J StdjI K STERLING
IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO
Business Address
COMMISSION STAFF
Party
IIY!)7
Date
Idaho Power Company Approval
By:
Date:
PROTECTIVE AGREEMENT -