20090410Protective Agreement.pdf

PROTECTIVE AGREEMENT
CASE NO. IPC*E-09-03
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Ths Protective Agrment is entere as of the 26th day of Marh 2009 by (~9i~él~);:jH~;; ;~i;:
Company ("Idaho Power" and the undersigned Interenors in Case No. IPC-E-09-03
(herinafer collectively referrd to as the "Pares" or individually as a "Par").
RECITALS:
1. WHREAS, Idaho Power desir to make . avaable to the Pares ce
information rectig Idao Power's Application for a Certfication of Public Convenience and
Necessity to build the Lagley Gulch power plan. (Case No. IPC-E-09-03).
2. WHRE, the Pares desire to receive such inormation.
3. WHEREAS, Idaho Power and the Pares anticipate th Idaho Power may
provide, or make avalable for review, certn inormation considered by Idaho Power to be of a
trade secet pnvileged, or confdential natu (as defined in Idaho Code § 9-340, el seq. and
§ 48-801, el seq.).
4. WHREAS, Idao Power and the Pares agre that entenng into a Protective
Agrement wil expedite the production of documents; will aford the necessar protection to
Idaho Power's an the Pares' employee and/or representatives in this proceedig who might
review the information and subsequently be reuested to revea its contents by settng fort clea
cut pareters for use of Confdential Informaton, and will protect Confidential Information
which might be provided hereafr.
PROTECTIVE AGREEMENT - i
IT is HEREBY STIPULTED AN AGREED AS FOLLOWS:
1. (a) Confidential Information.
All documents, data inormation, studies, and other matenals fushed that are
claimed to be of trade secret, propriet, or confdential natue (herein referred to as
"Confdential Informaton") sha be so marked by Idao Power by staping the sae with a
designation indicatig its trade secret, propneta, or confdential natu and pnnted on
"colore" paper. Any clai of confdentiality must be accompanied by an attorney's ceficate
that the matenal is protecte by law from public disclosure and cite the specific legal authonty to
support the claim. IDAPA 31.01.01.067 and 31.01.01.233. Accs to and reiew of
Confdential Inormation shal be stctly controlled by the terms of this Agreement.
(b) Use of Confdential Information.
All persons who may be entitled to review or who ar aforded access to any Confdential
Information by reason of ths Agreement shal neither use nor disclose the Confdential
Information for purses of business or competition or any purse other than the purose of
preparation for and conduct of Case No. IPC-E-09-03 and then solely as contemplated herein and
shall keep the Confdential Inormtion secure as trade secret, confidential, or proprietary
information and in accordace with the puroses and intent of ths Agreement.
(c) Persons Entitled to Review.
Individual access to Confdental Information shall be limied to counsel of the
undersigned Pares, employees, expert, agents, or representatives of the undersigned Pares
who have executed an Exhbit A to ths Agreement Such information will be clealy marked
and protected from unuthorid public disclosu.
PROTECTIVE AGREEMT - 2
(d) Nondisclosure Agreement.
Confidential Informtion shal not be disclosed to any peron who has not signed a
nondisclosue agrement on ths form, which is attached hereto as Exhbit A and incorporated
herein. The nondisclosure agreement or Exhbit A shall require the person to whom disclosu is
to be made to read a copy of ths Protective Agreement and to certfy in wnting that he or she has
reviewed the same and ha consented to be bound by its ters. The Agreement shal contain the
signatory's fu name, perment address, an employer.
(e) Challenge to Company Denial of Access.
Any disputes ansing as a resul of Idaho Power's denial of access to Confdential
Information shall be resolved by the Idaho Public Utilities Commission (UCommission'').
2.(a)Copies.
No copies or transcriptions of the Confdential Inormon shall be made by the Pares
except as necessar to make the inormation available to individuals 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) retued to Idaho Power or (2) shredded by the holder of such
documents.
Unless otherwse ordered, Confdential Informtion, includig trcnpts or depositions
containig information to which a clai of confdentiality is made, shall remain under seal, sha
continue to be subject to the protective requirments of this Agrment, and shall likewise, be
retued to counsel for Idaho Power withn thrt (30) days after final settement or conclusion of
the proceedings before the Commission which Confdential Inormation is relevant, including
PROTECTIVE AGREEMET - 3
admnistrative or judicial review thereof. After re of documents puruant to ths pagraph,
and upon reuest a writtn receipt venfyg retu sh be provided by counel.
(c) Return of Notes.
Any notes maitained by a recipient of Confdential Inormation which embody or reflect
any of the Confdential Information provided under ths Agreement shall, upon request of Idao
Power, be either retued to Idaho Power or, at the option of the reipient, destroyed.
3. Non-waiver of Objecton to Admissibilty.
The.furni$hing of any document, information, data stuy, or other materials puruat to
ths Protective Agent. shall in no way limit or waive the right of the providing Par to
object to its relevance or admissibilty in any proceedings before ths Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedme for the expeditious hadling of
information Idao Power claims iis confidential. In any proceeding before the Commission, a
Par may chalenge the charactenztion of any inormation, document) data, or study claied
by Idao Power to be a trde seret, proprieta, or confdential inormation. If seekng to
challenge the confidentiality of any information, Intervenors shall fist contact counsel for Idao
Power and attempt to resolve any difference by stipulation. Resolution may include removing
the confdential classifcations, creating a non-confidential sumar, reformatting the
information, etc.
(b) Subsequent Challenge.
In the event that the pares canot agre as to the character of the information
challenged, the Pares may chalenge the confdentiality of the informtion by petitioning in any
PROTECTIVE AGREEMENT. 4
proceeding in which the information. is relevant the Commission to rule upon the disputed
inormation. The Petition shal be served upon the Commssion and all paries to the proceeding
who have signed on Exhibit A as provided in ths Protective Agrement. The Pettion shall
designate with specificity the document or matenal challenged and state the grounds upon which
the subject matena ar deemed to be non-confdential by Intervenors.
(c) Challenge Hearing.
The Pares shall reques that the Commssion. conduct an in camera proceeding where
only those persns. duly authonzed to have access to such challenged materials under ths
Protective Agrement shal be present. Ths hearing shal be commenced no earlier than five (5)
business days after servg the Petition on Idao Power and the Commission. The record of th
in camera heang shall be mared "CONFENTI -- Subject to Protective Agreement."
To the extent necessar, the trancnpt of such heang shl be sepately bound, segregated,
sealed, and witheld from public inspection by any person not bound by the terms of ths
Agreement.
(d) Determination.
The Pares will ask the Commssion to issue an Order deterning whether any
challenged inormation or material is not properly deemed to be exempt from public disclosur
pursuant to the Idaho Public Records Act. (Idaho Code § 9-335, el seq.) If information is found
to be not exempt from disclosur, the Pares shall not disclose such chalenged materal or use it
in the public record, or otherwise outside the proceedings for at leat five (5) business days
uness Idaho Power consents to such conduct. Ths procedur enables the providing Par to
seek a stay or other relief from the Commission's Order removing the restnctions of ths
PROTECTIVE AGREEMæT - 5
Agreement from matenal claied to be confdentiaL. Such relief may be sought from the
Commssion or a cour of competent jurisdiction.
5. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in this proceeding of materials claied
to be confdential in the followig maner:
(1) If a Pary intends to use Confdential Information or to make
substative reference to Confdential Infortion supplied to it under ths Agreement, it shall
give reasonable pnor notice of such intention to Idaho Power and shal provide copies of the
used Confdential Inormation or substative reference to Confdential Information only to the
providing Pàry, and such other Pares, if any, who have executed an Exhbit A to this Protective
Agreement. .
PROTECTIVE AGREEMENT. 6
,
CONFIDENTIALITY" and shal not be examned by any person except under the conditions
set fort in ths Agreement, if applicable.
(c) In Camera Hearing an~ Transcnpts.
Any Confdential Inormation that must be oraly disclosed at a heanng in the
proceegs shall be offered at an in camera hearing, attended only by persons authorized to
have access to the informtion under ths Protective Agreement. Similarly, any trcription of
any examation or other reference to Confdential Inormation (or that porton of the record
contaning Confdential Inormation) shall be marked and trated as provided herein for
Confdentiallnonnation. See IDAPA 31.01.01.287.
(d) Access to Record.
Access to seaed teony, records, and inonnation shall be limited to the Commssion
and persons who have signed an Exhbit A as provided in ths Protecve Agrment, uness such
information is released from the restrctions of ths Agrment either through agreement of the
paies or afr notice to the pares and heanng, puruat to the order of the Commssion and/or
the fina order of a cour having fina junsdiction.
(e) Appeal.
Should an appeal from the proceeding be taen, sealed portions of the record may be
forwarded to any cour of competent jursdiction for puroses of an appea, but under seal as
designated herein for the information and use of the cour. ifa porton of the record is forwrded
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 necessar to the record
on appeal.
PROTECTIVE AGREEMENT - 7
6. Destruction or Return.
Unless otherwse ordered, Confdential Inormation provided pursuant to a discovery
request and this Agreement, including trcnpts of any discovery depositions to which å claim
of confdentiality is made, shall remai under sea, shall contiue to be subject to the protective
requirement of ths Agreement, and shall be destoyed or shal be retued to counsel for the
providing Par within thrt (30) days afr final settement or conclusion of this matter,
including administrative or Judicial review thereof.
7. Use in Pleadings.
Where references to Confdential Inonnation in the seaed record or with the custodian is
requied in pleadings, briefs, arguents, or motions (except as provided in pargraph 5), it shall
be by citation to title or exhbit number or ~ome other descripton tht wil not disclose the
substantive Confdential Informtion contaied therein. Any use of or substantive references to
Confdential Inormation shal be placed in a separte section of the pleading or brief and
submìttd to the Commssion puruant to paragraph 5. Ths sealed section shal be served only
on counsel of record who have signed the non-disclosu agreements set fort in Exhbit A
atched to ths Protective Agreement and may, in tu, be disclosed by them only to individuas
who likewise sigried Exbit A.
8. Summary of Record.
If deemed necessary by the Commission, Idaho Power shaH prepare a written sumar of
the Confdential Information referrd to in Order to be issued to the public and the pares.
9. Counterpart.
This Agrement may be executed in two or more counterparts, each of which shal be
deemed an original but all of which together shall consttute one and the same instruent.
PROTECTIVE AGREEMEN - 8
10. Ths Protective Agreement shall become effective on the date firs above wntten.
DATED ths 26th day of March 2009.
IDAHO POWER COMPANY
~
Attorney Repreentig
Idaho Power Company
. JBy:
PROTECTIVE AGREEMENT - 9
PROTETIVE AGREEMT -10
THE INUSTR CUSTOMERS OF IDAHO POWER
By:l¿j~Peter J. Richardson
Attorney Representig
The Indusal Customer of Idao Power
.-
PROTECTIVE AGREEMENT - 11
INVNERGY THERML DEVELOPMENT LLC
By:~WL
Dea J. Miler
Attorney Reprsentig
Invenergy Therml Development LLC
EXIT A
I have reewed the foregoin Protectve Agreement dated Mah.26, 2009, in Case No.
IPC.E-09-03 and agr to be bound by the term and conditions of such Agreement.
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Printe Name~~Signtu
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Emp~yer or Fir
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Busines Address
Par
if:¡rDate
EXHIBIT A
EXITA
I have reewed the foregoing Protectve Agreement dated Marh 26) 2009, in Case No.
IPC-E-09-03 and agree to be bound by the term and conditions of such Agrment.
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Prited Name'1&~..Sign
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Employer or Fir
jZht S:JL Wa~br Vli1ll i (qo(1I°CAS,1'L ~ocq"
Busies Address
Par
4*1Date
E:xIT A
EXHIT A
I have reviewed the foregoing Protectve Agrement dated Marh 26,2009, in Case No.
IPC-E-09-03 and agree to be bound by the tonn and conditions of such Agreement.
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Pred Name~~Signatu
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Employer or Fin
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Business Addrs
Par
$AiDate
EXfflTA
EXITA
I have reewed ihe foregoin Prteve Agemnt da Mar 26, 2009, in Ca No.
LPC-B-0903 and ag to be bound by the term an conditions of su Agreeient.
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Prite Name~..~!dSign
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Employe or Fir
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Par
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EXHIT A
I have reviewed the foregoing Protectve Agrent dated March 26, 2009, in Case No.
IPC-E-09~03 and age to be bound by the te and conditions of such Agrent.
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Employer or Fin
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Business Address
Par
tl!J¡Date I
EXHlBITA
EXHIBIT "A"
I have reviewed the foregoing Protective Agrent date Marh i 7, 200 in Cas No. IPC-E-09-03
and agre to be bound by the tenns and conditions of such Agrement.
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Name
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Employer or Fir
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Par
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Date