20090305Protective Agreement.pdf

PROTECTIVE AGREEMENT
CASE NO. IPC-E-09-02
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2009 MAR -5 AM' i: 36
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This Protective Agreement is entered as of the lf day of ~~~~;~&oS1!~iî~¿~:)¡\
Power Company ("Idaho Power"), the Idaho Public Utilities Commission Sta ("Staff), and the
undersigned Intervenors in Case No. IPC-E-09-02 (hereinafer collectively referred to as the
"Paries" or individually as a "Par").
RECITALS:
1. WHEREAS, Idaho Power desires to make available to the Paries certai
information respecting Idaho Power's agreement with EnerNOC. (Case No. IPC-E-09-02).
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, certain information considered by Idaho Power to be of a
trade secret, privileged, or confdential nature (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; will 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 fort clear
cut parameters for use of Confidential Inormation, and will 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 fushed that are
claimed to be of trade secret, proprietar, or confidential natue (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 confdential natue and printed on
"colored" paper. Any clai of confdentiality 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 strctly 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 ths 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-'09-02 and then solely as contemplated herein and
shall keep the Confdential Information secur as trade secret, confidential, or proprieta
information and in accordance with the purposes and intent of this Agrèement. .
(e) Persons Entitled to Review.
Individual access to Confidential 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 this Agreement. Such information will be clearly marked
and protected from unauthorized public disclosure.
PROTECTIVE AGREEMENT - 2
(d) Nondisclosure Agreement.
Confidential Information shall not be disclosed to any. person who has not signed a
nondisclosure agreement on this form, which is attched hereto as Exhbit 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 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 ful name, permanent address, and employer.
(e) Challenge to Company Denial of Aeeess.
Any disputes arsing as a result of Idaho Power's denial of access to Confdential
Information shall be resolved by the Idaho Public Utilities Commssion ("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 individuas who have executed an
Exhbit A to this Protective Agreement.
(b) Return of Confidential Information.
Upon request of Idaho Power, 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 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
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
administrative or judicial review thereof. After retu of documents pursuant to ths paragraph,
and upon request, a written receipt verifying retu shall be provided by counsel.
(e) Return of Notes.
Any notes maintained 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 fushing 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 admissibilty in any proceedings before this Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information Idao Power claims is confidential. In any proceeding before the Commission, a
Pary 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-confdential summar, reformatting the inormation,
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 Commission to rue upon the disputed
information. The Petition shall be served upon the Commission 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 nonconfidential by Staff.
(e) 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 hearng 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 hearng shall be marked "CONFIDENTIAL -- Subject to Proteetive Agreement."
To the extent necessar, 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 ths
Agreement.
(d) Determination.
The Paries will ask the Commission to issue an Order determining whether any
challenged inormation 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 otherwise outside the proceedings for at least five (5) business days
unless Idaho Power consents to such conduct. This procedure enables the providing Par 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 confidential. Such relief may be sought from the
Commission or a cour of competent jursdiction.
5. (a) Reeeipt Into Evidenee.
Provision is hereby made for receipt into evidence in this proceeding of materials claimed
to be confidential in the following maner:
(1 ) If a Par intends to use Confdential 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 substative reference to Confidential Information only to the
providing Par,.and such other Paries, if any, who have executed an Exhibit A to this Protective
Agreement.
(2) One (1) copy of the used Confdential Information or substantive
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 this
Protective Agreement.
(b) SeaL.
While in the custody of the Commission, materials containing Confdential 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 this Agreement, if applicable.
(e) In Camera Hearing and Transcripts.
Any Confidential Information that must be orally disclosed at a hearng in the
proceedings shall be offered at an in camera hearng, attended only by persons authorized to
have access to the inormation under this 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
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, uness such
information is released from the restrictions of this Agreement either though agreement of the
paries or after notice to the paries and hearng, 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 cour of competent jurisdiction for purposes 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 necessar to the record
on appeaL.
PROTECTIVE AGREEMENT - 7
6. Destruction or Return.
Unless otherwise ordered, Confidential Information provided pursuat to a discovery
request and ths Agreement, including trscripts of any discovery depositions to which a clai
of confidentiality is made, shall remain under seal, shall èontinue to be subject to the protective
requirements of ths Agreement, and shall be destroyed or shall be retued to counsel for the
providing Pary 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
substative Confidential 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 pursuat to paragraph 5. Ths 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 Exhibit A.
8. Summary of Record.
If deemed necessary by the Commission, Idaho Power shall prepare a wrtten sumar of
the Confdential 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 counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instruent.
PROTECTIVE AGREEMENT - 8
10. Ths Protective Agreement shall become effective on the date first above wrtten.
DATED ths ~ day of March 2009.
IDAHO POWER COMPANY
By:CMcL
Baron L. Kline
1221 West Idaho Street
Boise, Idaho 83702
IDAHO PUBLIC UTILITIES COMMSSION STAFF
Ñcst~By:
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
Attorneys Representing
Idaho Public Utilties Commission Staff
PROTECTIVE AGREEMENT - 9
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated March 4, 2009 in Case No. IPC-E-09-2
and agree to be bound by the terms and conditions of such Agreement.
L~
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StafPar
3/Lf/ò9
Date i I I
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated March 4, 2009 in Case No. IPC-E-09-2
and agree to be bound by the terms and conditions of such Agreement.
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Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
"? '" ~..~.._.5.-'- l
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 4, 2009 in Case No. IPC-E-09-2
and agree to be bound by the terms and conditions of such Agreement.
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Mattew Elam - ~
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staf
Pary
:55/121Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 4, 2009 in Case No. IPC-E-09-2
and agree to be bound by the terms and conditions of such Agreement.
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Randy Lobb
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Sta
Pary
3/5-lô1
Date