20090318Protective Agreement.pdf

PROTECTIV AGREEMENT
IDAHO PO~~~~PANY AND 20û9 MAR 18 AM It: 0 I
IDAHO PUBLIC UTILITIES COMMSSION STAFF
OI'i:.C. i:t\ ,..
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Ths Protective Agreement is entered into ths .Jay of March 2009 by Idao Power
Company and the Idaho Public Utilties Commission (Sta.
Recitals:
1. WHREAS, Idaho Power Company (Idao Power) desires to mae available to the Sta
certn inormation respetig Idao Power's Application in Case No. IPC-E-09-03, and Sta desirs
to receive such information.
2. WHREAS, Idaho Power and Sta anticipate that Idaho Power may provide, or make
available for review, cert information, considered by Idao 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.).
3. WHREAS, Idaho Power and Sta agree that entering into a Protective Agrment will
expedite the production of documents; will aford the necessar protection to Idaho Power's and
Sta s employees and/or representatives in ths proceeding who might review the inormation and
subsequently be requested to reveal its contents by setting fort clear cut parameters for use of
Confdential Information, and will protect Confdential Information which might be provided
hereafer,
'l
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a) Confidential Information.
All documents, data information, studies and other materials fushed puruat to any
requests for inormation, subpoenas or other modes of discovery (formal or infonnal), and includg
depositions, that are claimed to be of trade secret, proprietar or confidential natue (herein referred
to as "Confdential Information") shall be so marked by the par or entity providig the inormation
by stping the sae with a designation indicating its trade secret, proprieta or confdential natue
and prited 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 31.01.01.233. Access to and review of Confdential
Information shall be strctly controlled by the terms of this Agreement.
PROTECTIVE AGREEMENT 1
(b) Use of Confidential Information
All persons who may be entitled to review, or who are aforded access to any Confdential
Infonnation by reason of ths Agreement shall neither use nor disclose the Confdential Informtion
for purses of business or competition, or any purose other than the purose of preartion for and
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confdential
Information secure as trade secret, confidential or proprieta inormtion and in accordace with the
puroses and intent of ths Agreement.
(c) Persons Entitled to Review.
Access to Confidential Information shal be limited to counel 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
unuthorized public disclosure.
(d) Nondisclosure Agreement.
Confdential Information shall not be disclosed to any person who ha not signed a
nondisclosure agreement on ths form, which is attched hereto as Exhbit "A" and incorprated
herein. The nondisclosure agreement or Exhbit "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 tht he or she ha
reviewed the sae and has consented to be bound by its terms. The Agreement shal conta the
signatory's ful nae, permanent address and employer. Such agreement shall be delivered to
counsel for the providing par, before disclosure is made.
2. (a) Copies.
No copies or transcriptions of the Confdential Information shall be made by the recipient
except as necessar to make the information available to individuas who have executed an Exhibit
"A" to this Protective Agreement.
(b) Return of confidential Information.
Upon request of the providing par, all original documents and copies of the Confidential
Information shall be: (1) retured to the providing par or (2) shredded by the holder of such
documents withn thrt (30) days after the final settlement or conclusion of the proceedings,
including administrative or judicial review thereof.
Unless otherwise ordered, Confidential Infonnation, including transcripts or depositions
containing infonnation to which a claim of confidentiality is made, shall remain under sea, shall
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PROTECTIVE AGREEMENT 2
continue to be subject to the protective requirements of ths Agreement, and shall likewise, be
retued to counsel for the providing pa withn thirt (30) days afer fin settement or conclusion
of the proceedings, including administrative or judicial review thereof. After retur of documents
pursuant to ths paragraph, and upon request, a wrtten receipt verifying retu shal be provided by
counel.
(e) Return of Notes.
Any notes maintaed by a recipient ofConfdential Inormtion which embody or reflect any
of the Confidential Information provided under ths Agreement shall, upon request of the providing
par, be either retued to the providing par or, at the option of the recipient, destoyed.
3. Non-Waiver of Objection to Admissibilty.
The fushing of any document, information, data, study or other materials pursuat to this
Protective Agreement shall in no way limit or waive the right of the providing par to object to its
relevance or adssibilty in any proceedings before ths Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
Ths Protective Agreement establishes a procedure for the expeditious handling of
information that a par claims is confdential. Any par may challenge the characterization of any
informtion, document, data or study claied by the providing par to be a trade secret, proprieta
or confdential information. A par seeking to challenge the confdentiality of any înormation shal
first contat counel for the providing par and attempt to resolve any difference by stipulation.
Resolution may include removing the confdential 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 infonnation challenged,
any par challenging the confidentiality may petition the Commssion to rule upon the disputed
information. The Petition shall be sered upon the Commssion and all paries to the case 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 nori-confdential by.the challenging par.
,.;
PROTECTIVE AGREEMENT 3
(c) Challenge Hearing.
The chalenging par shall request that the Commission 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 hearg shall be commenced no earlier than five (5)
business days afer serving the Petition on the providing par and the Commission. The reord of
the in camera hearng shall be marked "CONFIDENTIAL - Subject to Protective Agreement."
To the extent necessar, the transcript of such hearg shall be separately bound, segregated, sealed,
and witheld 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
information or material is not properly deemed to be exempt from public disclosure puruat to the
Idao Public Records Act (Idaho Code §§ 9-335,9-337 et seq.). If information is found to be not
exempt from disclosure, no par shall disclose such chalenged material or use it in the public
record, or otherwise outside the proceedings for at least five (5) business days uness the providing
par consents to such conduct. Ths procedure enables the restrctions of this 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 Evidence.
Provision is hereby made for receipt into evidence in this proceeding of materials claied to
be confdential in the following maner:
(1) If the requesting par intends to use Confidential Information or to make
substantive reference to Confdential Information supplied to it under ths
Agreement, it shall give reasonable prior notice of such intention to the providing
par and shall provide copies of the used Confdential Information or substative
reference to Confidential Information only to the providing par, and such other
paries, if any, who have executed an Exhbit "A" to this Protective Agreement.
(2) One (1) copy of the used Confdential Inormation or substative reference to
Confdential Information or substative reference to Confdential Information
described in paragraph 5(a)(I) 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 par.
íi
PROTECTIVE AGREEMENT 4
(4) The copy of the documents to be placed in the sealed record shall be
tendered by counsel for the providing par Commission, and shall be maintaned in
accordance with the terms of ths Protective Agreement.
(b) Seal.
While in the custody of the Commission, materials contang Confdential Inormtion shal
be marked "CONFIDENTIAL - SUBCT TO ATTORNEY'S CERTIFICATE OF
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 Infonnation that must be orally disclosed at a heang in the proceedings
shall be offered at an in camera hearng, attended only by persons authorized to have access to the
information under ths Protective Agreement. Similarly, any transcription of any examination or
other reference to Confdential Information (or tht portion of the record contang Confdential
Information) shal be marked and treated as provided herein for Confdential Information.
(d) Aecess to Reeord.
Access to sealed testimony, records, and information shall be limited to the Commssion and
persons who have signed an Exhbit "A" as provided in ths Protective Agreement, uness such
information is released from the restrctions of ths Agreement either though agreement of the
paries or after notice to the paries and hearng, pursuat to the order of the Commssion and/or the
final order of a cour having final jursdiction.
(e) Appeal.
Should an appeal from the proceeding be taen, sealed portons of the record may be
forwarded to any cour of competent jursdiction for purses 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 par shall be notified which porton of
the sealed record has been designated by the appealing par as necessa to the record on appeal.
6. Destruction (or Return).
Unless otherwse ordered, Confdential Information provided pursuat to a discover 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 retued to counsel for the
PROTECTIVE AGREEMENT 5
providing par 1 within th (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 Pargraph 5), it shall be
by citation to title or exhbit number or some other description that will not disclose the substative
Confdential Information contaned therein. Any use of or substative references to Confdential
Information shal be placed in a separte section of the pleading or brief and submitted to the
Commission pursuat to Pargraph 5. Ths sealed section shall be servced only on counel of reord
who have signed the nondisclosure agreements set fort in Exhbit "A" attched to ths Protective
Agreement, and may, in tu, be disclosed by them only to individuas who likewise signed Exhibit
"A".
8. Summary of Reeord.
If deemed necessar by the Commission, the providing paries shall prepare a wrtten
sumar of the Confdential Information referred to in Orders to be issued to the public and the
pares.
9. Ths Protective Agreement shal become effective on the date hereof.
PROTECTIVE AGREEMENT 6
DATED at Boise Ida th 17~ of Mah 2009.
IDAHO POWER COMPAN
lB5oZ(~, .Baron L. Kline
Idaho Power Company
PO Box 70
Boise, ID 83707-0070
By
By~f)'$~~~m-
Idaho Power Company-
PO Box 70
Boise, ID 83707-0070
Attorneys for Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Scott D. Woodbur
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washigton Street
Boise, ID 83702
By
Attorney Representing
Idaho Public Utilities Commission Sta.
PROTECTIVE AGREEMENT 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March i 7, 2009 in Case No. IPC-E-09-03
and agree to be bound by the tenns and conditions of such Agreement.
~;j~-:terling - -
Idaho Public Utilties Commission
Employer or Finn
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StaffPar
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March i 7,2009 in Case No. IPC-E-09-03
and agree to be bound by the terms and conditions of such Agreement.
jg~ La,Jock
Terr Carlock
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StaPar
:J I /~/JCOCr
Date
EXHBIT "A"
I have reviewed the foregoing Protective Agreement dated March i 7, 2009 in Case No. IPC-E-09-03
and agree to be bound by the terms and conditions of such Agreement.
1rd1~Rady Lobb
Idaho Public Utilties Commission
Employer or Finn
472 W. Washington Street. Boise. ID 83702
Business Address
Commission Sta
Pary
Gh'ó/ò1
Date