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HomeMy WebLinkAbout20080820Protective Agreement.pdf.,¡ PROTECTIVE AGREEMENT CASE NO. IPC-E-08-16 This Protective Agreement is entered as of the ~ay of August 2008 b~;ij~~;~gW¿t Company ("Idaho Power"), the Idaho Public Utilities Commission Staff ("Staff), . and the undersigned Intervenors in Case No. IPC-E-08-16 (hereinafter 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 aCertification of Public Convenience and Necessity to install Advanced Metering Infrastrcture ("AMI") technology throughout its service territory. (Case No. IPC-E-08-16). 2. WHEREAS, the Paries desire to receive such information. 3. 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 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 wil 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 Confidential -Information which might be provided hereafter. PROTECTIVE AGREEMENT - i IT is HEREBY STIPULATED AND AGREED AS FOLLOWS: 1. (a) Confidential Information. All documents, data information, studies, and other materials fuished. that are claimed to be of trade secret, proprieta, or confdential natue (herein referred to' as "Confidential Information") shall be so marked by Idaho Power by staping the same with a designation indicating its trade secret, proprieta, or confdential natue and prited on "colored" paper. Any claim of confidentiality 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 clai. IDAPA 31.01.01.067 and 31.01.01.233. Access to and review of Confdential Information shall be strictly controlled by the terms of ths 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 Confdential Information for puroses of business or competition or any purose other than the purose of preparation for and conduct of Case No. IPC-E-08-l6 and then solely as contemplated herein and shall keep the Confidential Information secure as trade secret, confidential, or proprieta information and in accordance with the puroses and intent of ths Agreement. (c) Persons Entitled to Review. Individua access to Confdential Information shall be limited to counsel of the undersigned Paries, employees, experts, agents, or representatives of the undersigned Pares who have executed an Exhbit A to ths Agreement. Such information will be clearly marked and protected rrom unauthorized public disclosure. PROTECTIVE AGREEMENT - 2 (d) Nondisclosure Agreement. Confidential Informàtion shall not be disclosed to any person who has not signed a nondisclosure agreement on ths form, which is attched hereto as Exhbit A and incorporated herein: The nondisclosure agreement or Exbit A shall require the person to whom disclosure is to be made to read a copy of ths 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 conta the signatory's ful 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 Confdential Information shall be resolved by the Idaho Public Utilities Commssion ("Commssion"). 2.(a)Copies. No copies or transcriptions of the' Confdential Information shall be made by the Pares except as necessar to make thè information available to individuals who have executed an Exhbit A to ths Protective Agreement. (b) Return of Confidential Information. Upon request of Idaho Pòwer, all original documents and copies of the Confdential Information shall be (1) retured to Idaho Power or (2) shredded by the holder of such documents. Unless otherwse 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 ths Agreement, and shall likewise, be retued to counsel-for Idaho Power withn thrty (30) days afer final settlement or conclusion of the proceedings before the Commission which Confdential Informtion is relevant, including PROTECTIVE AGREEMENT -3 a.instrative or judicial review thereQf. After retu of documents pursuant to this paragraph, and upon request, a wrtten receipt verifyng retur 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 Confidential Information provided under ths Agreement shall, upon request of Idaho Power, be either retued to Idaho Power or, at the option of the recipient, destroyed. 3. Non-waiver of Objection to Admissibilty. The fushig of any document, information, data, study, or other materials 'pursuat to ths Protective Agreement shall in no way limit or waive the right of the providing Pary to object to its relevance or admissibility in any proceedings before ths Commission. 4. Challenge to Confidentiality. (a) Initial Challenge. This Protective Agreement establishes a procedure for the expeditious handling of information Idao Power clais 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, proprietar, or confidential information. If seekig to challenge the confdentiality of any information, Staff shall first contact counsel for Idaho Power and attempt to resolve any difference by stipulation. Resolution may include removing the confdential classifications, creating a non-confidential 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 confidentiality of the information by petitioning in any PROTECTIVE AGREEMENT - 4 proceeding in which the information is relevant the Commssion to rue upon the disputed information. The Petition shall be served upon the Commssion ard all paries to the proceeding who have signed on Exhbit 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 Staff. ~ (c) Challenge Hearing. The Paries 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 hearg 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 hearg shall be marked "CONFIDENTIA -- 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 ths Agreement. (d) Determination. The Paries will ask the Commission to, issue an Order determning whether any challenged information or material is not properly deemed to be exempt from public disclosure pursuat 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 leas five (5) business days unless 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 this PROTECTIVE AGREEMENT - 5 Agreement from material claimed to be confdential. Such relief may be sought from the Commission or acour of competent jurisdiction. 5. (a) Receipt Into Evidence. Provision is hereby made for receipt into evidence in ths proceeding of materials claied to be confdential in the following maner: (1) If a Pary intends to use Confdential Inormation or to make substantive reference to Confdential 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 Confdential Information or substative reference to Confidential Information only to the providing Pary, and such other Paries, if any, who have executed an Exhbit A to ths Protective Agreement. (2) One (l) copy of the used Confdential Information or substative reference to Confdential 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 tobe 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 maintaned in accordance with the terms of this 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 Information that must be orally disclosed. at a hearg in the proceedings shall be offered at an in camera hearg, 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 Confdential Information (or that portion of the record contaning 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 Commssion and pèrsons who have signed an Exhibit A as provided in ths Protective Agreement, uness such inormation is released from the restrictions of ths Agreement either though agreement of the pares 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 taken, sealed portions of the record may be forwarded to any cour of competent jursdiction for puroses of an appeal, but under seal as designated herein for the information and use of the cour. If a portion of the record is forwarded to a cour under seal for the puroses of an appeal, the providing Pary 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. Uriless otherwse ordered, Confdential Information provided pursuant to a discovery request and this Agreement, including transcripts of any discovery depositions to which a clai of confdentiality is made, shall remain under seal, shall continue to be subject to the protective requirements of ths Agreement, and shall be destroyed or shall be retued to counsel for the providing Pary withi thrt (30) - days afer final settlement or conclusion of ths matter, including adminstrative 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 exhbit number or some other description that will not disclose the substantive Confdential Information contained therein. Any use of or substative references to Confidential Information shall be' placed in a separate section of the pleading or brief and submitted to the Commission pursuatto 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 attched to this Protective Agreement and may, in tu, be disclosed by them only to individuas who likewise signed Exhbit A. 8. Summary of Record. If deemed necessar-by the Commission, Idaho Power shall prepare a wrtten sumar of the Confidential Information referred to in Orders to be issued to the public and the paries. 9. Counterparts. Ths 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. Ths Protective Agreement shall become effective on the date first above written. DATED this!l day of August 2008. IDAHO POWER COMPAN c¿By: onovan E. Walker 1221 West Idaho Street Boise, Idaho 83702 IDAHO PUBLIC UTILITIES COMMISSION STAFF By:tDr !'.~ Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise, Idaho 83702 Attorneys Representing Idaho Public Utilities Commission Sta PROTECTIVE AGREEMENT - 9 EXHIBIT "A" I have reviewed the foregoing Protective Agreement dated ths ~day of August 2008 in Case No. IPC-E-08-16 and agree to be bound by the term and conditions of such Agreement. TJGOLO ;Æl Idaho Public Utilities Commission Employer or Firm. 472 W. Washington Street, Boise, il 83702 Business Address Commssion StaffPar ~\'iJ~ Date EXHIBIT "A" I have reviewed the foregoing Protective Agreement dated this1¡day of August 2008 in Case No. IPC-E-08-16 and agree to be bound by the terms and conditions of such Agreement.CL 53C / L Idaho Public Utilties Commission Employer or Firm 472 W. Washington Street, Boise, ID 83702 Business Address Commission Staff . Pary §-/.3--oB Date EXHIBIT "A" I have reviewed the foregoing Protective Agreement dated this ~ay of August 2008 in Case No. IPC-E-08-16 and agree tt be bound b~ d conditions ofsuoh Agrment. Idaho Public Utilities Commission Employer or Firm 472 W. Washington Street, Boise, ID 83702 Business Address Commission StafPar (HI:!D te p EXHIBIT-"A" I have reviewed the foregoing Protective Agreement dated this ~ay of August 2008 in Case No. IPC-E-08-16 and agree to be bound by the terms and conditions of such Agreement. RAE~~ Idaho Public Utilties Commission Employer or Firm 472 W. Washington Street, Boise, ID 83702 Business Address Commission Staff Pary rúz,!o't Date donn-i Cwoc TERR CARLOCK Idaho Public Utilities Commission Employer or Firm 472 W. Washington Street, Boise, ID 83702 Business Address Commission Staff Pary (L1ADate (J lJ' /lOOZi EXHIBIT" A" :Yi have reviewed the foregoing Protective Agreement dated this ~dayof August 2008 in Case No. IPC-E~08-16 and agree to be bound by the terms and conditions of such Agreement. Idaho Public Utilities Commission Employer or Firm 472 W. Washington Street, Boise, ID 83702 Business Address Commission Staff Par Dr/ulo c¡ Date I . EXHIBIT" A" I have reviewed the foregoing Protective Agreement dated this 4iNay of August 2008 in Case No. IPC-E-08-16 and agree to be bound by the terms and conditions of such Agreement. e--~ DANIEL KLEIN Idaho Public Utilities Commission Employer or Firm 472 W. Washington Street, Boise, ID 83702 Business Address Commission Staf Pary g -- 1/- cOg- Date