20080619Protective Agreement.pdf

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PROTECTIVE AGREEMENT
CASE NO. IPC-E-08-13 innqù'-u 19 AN 10: 09
Ths Prtecve Agreement is entered as of the / q "daY of June ~bò~~~h~~~~~~~ION
Company ("Idaho Power"), the Idaho Public Utilities Commission Sta ("Staf), and the
undersigned Intervenors in Case No. IPC-E-08-13 (hereinafer collectively referred to as the
"Paries" or individually as a "Pary").
RECITALS:
1. WHEREAS, Idaho Power desires to make available to the Paries certain
information respecting Idaho Power's Application for authority to include the cost of power
purchased under the June 2, 2008, Power Purchase Agreement with PPL EnergyPlus, LLC, in the
Company's Power Cost Adjustment ("PCA") (Case No. IPC-E-08-13).
2. WHEREAS, the Paries desire to receive such information.
3. WHEREAS, Idao Power and the Paries' anticipate that Idao Power may
provide, or make available for review, certin information considered by Idaho Power to be of a
trade secret, privileged, or confdential natue (as defined in Idaho Code § 9-340, et seq. and
§ 48-801, et seq.).
4. WHEREAS, Idaho Power and the Paries agree that entering into a Protective
Agreement will expedite the production of documents; wil afford the necessar protection to
Idaho Power's and the Paries' 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 wil protect Confdential Information
which might be provided hereafter.
PROTECTIVE AGREEMENT - 1
IT is HEREBY STIPULATED AN AGREED AS FOLLOWS:
1. (a) Confidential Information.
All documents, data, information, studies, and other materials fuished that are
claimed to be of trade secret, proprietar, or confdential nature (herein referred to as
"Confdential Information") shall be so marked by Idaho Power by staping the same with a
designation indicating its trade secret, proprieta, or confidential natue and printed on
"colored" paper. Any claim of confdentiality must be accompaned 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 Confdential
Information by reason of this Agreement shall neither use nor disclose the Confdential
Information for puroses of business or competition or any purpose other than the purose of
preparation for and conduct of Case No. IPC-E-08-13 and then solely as contemplated herein and
shall keep the Confdential Information secure as trade secret, confidential, or proprieta
information and in accordance with the puroses and intent of this Agreement.
(c) Persons Entitled to Review.
Individual access to Confdential Information shall be limited to counsel of the
undersigned Paries, employees, experts, agents, or representatives of the undersigned Paries
who have executed an Exhibit A to ths Agreement. Such information will be clearly marked
and protected from unauthorized public disclosure.
PROTECTIVE AGREEMENT - 2
(d) Nondisclosure Agreement.
Confdential Information shall not be disclosed to any person who has not signed a
nondisclosure agreement on ths form, which is attched 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 ths Protective Agreement and to certify in wrting 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) Challenge 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").
2.(a)Copies.
No copies or transcriptions of the Confdential Information shall be made by the Paries
except as necessary to make the information available to individuals who have executed an
Exhbit A to ths Protective Agreement.
(b) Return of Confidential Information.
Upon request of Idaho Power, all original documents and copies of the Confidential
Information shall be (1) retued to Idaho Power or (2) shredded by the holder of such
documents.
Unless otherwse ordered, Confidential Information, including transcripts or depositions
containing infoIlation to which a claim of confdentiality is made, shall remain under seal, shall
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
retured to counsel for Idaho Power within thirt (30) days after final settlement or conclusion of
the proceedings before the Commission which Confidential Information is relevant, including
PROTECTIVE AGREEMENT - 3
admstrative or judicial review thereof. After retu of documents pursuant to this paragraph,
and upon request, a written receipt verifying retu shall be provided by counsel.
(c) Return of Notes.
Any notes maintaned by a recipient of Confdential Information which embody or reflect
any of the Confdential Information provided under this Agreement shall, upon request of Idao
Power, be either retured to Idaho Power or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty. .
The fushing of any document, information, data, study, or other materials pursuant to
ths Protective Agreement shall in no way limit or waive the right of the providing Par to
object to its relevance or admissibility in any proceedings before this Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
inormation Idaho Power claims is confdential. In any proceeding before the Commission, a
Par may challenge the characterization of any information, document, data, or study claimed
by Idaho Power to be a trade secret, proprieta, 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-confdential sumar, reformatting the information,
etc.
(b) Subsequent Challenge.
In the event that the paries canot agree as to the character of the information
challenged, the Paries may challenge the confdentiality of the information by petitioning in any
PROTECTIVE AGREEMENT - 4
proceeding in which the information is relevant the Commission to rue upon the disputed
inormation. The Petition shall be served upon the Commssion and all paries 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 nonconfdential by Staf.
(c) Challenge Hearing.
The Paries shall request that the Commssion conduct an in camera proceeding where
only those persons duly authorized to have access to such challenged materials under ths
Protective Agreement shall be present. Ths hearng shall be commenced no earlier than.five (5)
business days after serving the Petition on Idaho Power and the Commssion. The record of the
in camera hearng shall be marked "CONFIDENTIAL -- Subject to Protective Agreement."
To the extent necessar, the transcript of such hearng 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 Paries will ask the Commssion 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 § 9-335, et seq.) If information is found
to be not exempt from disclosure, the Paries shall not disclose such challenged material or use it
in the public record, or otherwse outside the proceedings for at least five (5) business days
uness Idaho Power consents to such conduct. This procedure enables the providing Pary. to
seek a stay or other relief from the Commission's Order removing . the restrictions of ths
PROTECTIVE AGREEMENT - 5
Agreement from material claimed to be confdential. Such relief may. be sought from the
Commission or a cour of competent jursdiction.
5. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in ths proceeding of materials claied
to be confidential in the following maner:
(1) If a Pary intends to use Confdential Information or to make
substative 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 substative' reference to Confdential Information only to the
providing Pary, and such other Paries, if any, who have executed an Exhibit A to ths Protective
Agreement.
(2) One (1) copy of the used Confdential Information or substative
reference to Confidential Information or substantive reference to Confdential 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.
(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 ths
Protective Agreement.
(b) SeaL.
Whle in the custody of the Commission, materials containing Confidential Information
shall be marked "CONFIDENTIAL -- SUBJECT TO ATTORNEY'S CERTIFICATE OF
PROTECTIVE AGREEMENT - 6
CONFIDENTIALITY" and shall not be examined by any person except under the conditions
set fort in ths Agreement, if applicable.
(c) In Camera Hearing and Transcripts.
Any Confdential Inormation that must be orally disclosed at a hearng in the
proceedings shall be offered at an in camera hearing, attended only by persons authorized to
have access to the inormation under ths Protective Agreement. Similarly, any transcription of
any examination or other reference to Confidential Information (or that. portion of the record
containing Confdential Information) shall be marked and treated as provided herein for
Confdential 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 though agreement of the
paries or after notice to the paries and hearing, pursuat to the order of the Commission and/or
the final order of a cour having final jurisdiction.
(e) AppeaL.
Should an appeal from the proceeding be taen, sealed portions of the record may be
forwarded to any cour of competent jurisdiction for puroses of an appeal, but under seal as
designated herein for the information and use of the cour. Ifa portion of the record is forwarded
to a cour under seal for the puroses of an appeal, the providing Par shall be notified which
portion of the sealed record has been designated by the appealing pary as necessary to the record
on appeal.
PROTECTIVE AGREEMENT - 7
6. Destruction or Return.
Unless otherwise ordered, Confidential Information provided pursuant to a discovery
request and ths 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 retued to counsel for the
providing Pary with thirty (30) days after final settlement or conclusion of ths 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 wil not disclose the
substative Confidential Information contained therein. Any use of or substative references to
Confdential 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 served only
on counsel of record who have signed the non-disclosure agreements set fort in Exhbit A
attached to this Protective Agreement and may, in tur, be disclosed by them only to individuals
who likewise signed Exhbit A.
8. Summary of Record.
If deemed necessary by the Commission, Idaho Power shall prepare a written sumar of
the Confidential Information referred to in Orders to be issued to the public and the paries.
9. Counterparts.
This Agreement may be executed in two or more counterpars, each of which shall be
deemed an original but all of which together shall constitute one and the. same instrent.
PROTECTIVE AGREEMENT - 8
10. This Protective Agreement shall become effective on the date first above written.
DATED this ~ay of June, 2008.
IDAHO POWER COMPAN
PROTECTIVE AGREEMENT - 9
(l.I~
Baron 1. Kline
1221 West Idaho Street
Boise, Idaho 83702
By:
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:e;.
Scott oodbur
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
Attorneys Representing
Idaho Public Utilities Commission Staff
,
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EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated July 19, 2008 in Case No. IPC-E-08-
13 and agree to be bound by the terms and conditions of such Agreement.
7i~ickSterli~
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary