20090914Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN
IDAHO POWER COMPAN AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
RECE D
2009 SEP '4 AM 9: 36
This Protective Agreement is entered into this 21\1 day of September 2009 by Idaho
Power Company and the Idaho Public Utilties Commission (Staff.
Recitals:
i. WHEREAS, Idaho Power Company (Idaho Power) desires to make available to the Staff
cerain information respecting Idaho Power's Application in Case No. IPC-E-09-24, and Staff desires
to receive such information.
2. WHEREAS, Idaho Power and Staff 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 natle (as defined in Idaho CQ.4e~ 9-340 et seq. and § 48::.801 et seq.).
3. WHEREAS, Idaho Power and Staff agree that entering into a Protective Agreement wil
expedite the production of documents; wil afford the necessar protection to Idaho Power's and
Staffs 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 Information, and wil protect Confidential Information which might be provided
hereafter,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a) Confidential Information.
All documents, data, information, studies and other materials fuished pursuant to any
requests for information, subpoenas or other modes of discovery (formal or informal), and including
depositions, that are claimed to be of trade secret, proprietar or confidential natue (herein refered
to as "Confidential Information") shall be so marked by the pary or entity providing the information
by stamping the same with a designation indicating its trade secret, proprietar or confidential natue
and printed on "colored" paper. Any claim of confidentiality 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 31.01.01.233. Access to and review of Confidential
Information shall be strictly controlled by the ters of this Agreement.
PROTECTIVE AGREEMENT 1
(b) Use of Confidential Information
All persons who may be entitled to review, or who are afforded access to any Confidential
Information by reason ofthis Agreement shall neither use nor disclose the Confidential Information
for puroses of business or competition, or any puipse other than the purose of preparation for and
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secret, confidential or proprietar information and in accordance with the
purposes and intent of this Agreement.
(c) Persons Entitled to Review.
Access to Confidential Information shall be limited to counsel of the undersigned parties,
employees, expers, agents or representatives of the undersigned paries who have executed an
Exhibit "A" to this Agreement. Such information wil be clearly marked and protected from
unauthorized public disclosure.
(d) Nondisclosure Agreement. "'-.,
Confidential Information shall not be disclosed to any person who has not signed a
nondisclosure agreement on this form, which is attached 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 ths Protective Agreement and to cerify in wrting that he or she has
reviewed the same and has consented to be bound by its ters. The Agreement shall contain the
signatory's full name, permanent address and employer. Such agreement shall be delivered to
counsel for the providing pary, before disclosure is made.
2. (a) Copies.
No copies or transcriptions of the Confidential Information shall be made by the recipient
except as necessar to make the information available to individuals who have executed an Exhibit
"A" to this Protective Agreement.
(b) Return of confidential Information.
Upon request of the providing pary, all original documents and copies of the Confidential
Information shall be: (1) returned to the providing par or (2) shredded by the holder of such
documents within thirty (30) days after the final settlement or conclusion of the proceedings,
including administrative or judicial review thereof.
Unless otherwise ordered, Confidential Information, including transcripts or depositions
containing information to which a claim of confidentiality is made, shall remain under seal, shall
PROTECTIVE AGREEMENT 2
continue to be subject to the protective requirements of this Agreement, and slUill likewise, be
returned to counsel for the providing pary withn thrty (30) days after final settlement or conclusion
of the proceedings, including administrative or judicial review thereof. After retu of documents
pursuant to this paragraph, and upon request, a written receipt verfyng return shall be provided by
counsel.
(c) Return of Notes.
Any notes maintained by a recipient of Confidential Information which embody or reflect any
ofthe Confidential Information provided under this Agreement shall, upon request of the providing
par, be either retued to the providing pary or, at the option of the recipient, destroyed.
3. Non-Waiver of Objection to Admissibilty.
The fuishing of any document, information, data, study or other materals pursuant 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 arty proceedings before thS'Cmnission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
infomiation that a par claims is confidentiaL. Any par may challenge the characterization of any
information, document, data or study claimed by the providing pary to be a trade secret, proprietar
or confidential information. A pary seeking to challenge the confdentiality of any information shall
first contact counsel for the providing pary and attempt to resolve any difference by stipulation.
Resolution may include removing the confidential classifications, creating a non-confidential
summar, reformatting the information, etc.
(b) Subsequent Challenge.
In the event that the paries canot agree as to the character of the information challenged,
any par challenging the confidentiality may petition the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all parties to the case 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 non-confidential by the challenging par.
PROTECTIVE AGREEMENT 3
(c) Challenge Hearing.
The challenging pary 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. This heag shall be commenced no earlier than five (5)
business days after serving the Petition on the providing par and the Commission. 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 witheld from public inspection by any person not bound by the ters of this Agreement.
(d) Determination.
The paries wil ask the Commission to issue an Order deterining 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, 9-337 et seq.). If information is found to be not
exempt from disclosure, no par shall disclose such challenged material or use it in the public
record, or otherise outside the proceedings for at least five (5) business days unless the providing
pary consents to such conduct. Ths procedure enables the restrictions of this Agreement from
material claimed to be confidentiaL. Such relief may be sought from the Commission or a court of
competent jursdiction.
5. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in this proceeding of materials claimed to
be confidential in the following maner:
(1) If the requesting par intends to use Confidential 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 the providing
par and shall provide copies of the used Confidential Information or substantive
reference to Confidential Information only to the providing pary, and such other
paries, if any, who have executed an Exhibit "A" to this Protective Agreement.
(2) One (I) copy of the used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential 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.
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 maintained in
accordance with the terms of this Protective Agreement.
(b) SeaL.
Whle in the custody of the Commission, materials containng Confidential Information shall
be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
fort in this Agreement, if applicable.
(c) 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
information under this Protective Agreement. Similarly, any transcription of any examination or
other reference to Confidential Information (or that porfíoif of the record containing Confidential
Information) shall be marked and treated as provided herein for Confidential Information.
(d) Access to Record.
Access to sealed testimony, records, and information shall be limited to the Commssion and
persons who have signed an Exhibit "A" as provided in this Protective Agreement, unless such
information is released from the restrctions of ths 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 court of competent jurisdiction for purposes of an appeal, but under seal as
designated herein for the information and use ofthe court. If a portion of the record is forwarded to a
court under seal for the purposes of an appeal, the providing pary shall be notified which portion of
the sealed record has been designated by the appealing party as necessar to the record on appeaL.
6. Destruction (or Return).
Unless otherwise ordered, Confidential Information provided pursuant to a discovery 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 returned to counsel for the
PROTECTIVE AGREEMENT 5
providing pary) within thirt (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, arguents, or motions (except as provided in Paragraph 5), it shall be
by citation to title or exhibit number or some other descrption that wil not disclose the substantive
Confidential Information contained therein. Any use of or substantive references to Confidential
Information shall be placed in a separate section of the pleading or brief and submitted to the
Commission pursuant to Paragraph 5. Ths sealed section shall be sericed only on counsel of record
who have signed the nondisclosure agreements set fort in Exhibit "A" attached to this Protective
Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
"A".
8. Summary of Record. ...-.,
If deemed necessar by the Commission, the providing paries shall prepare a written
summar of the Confidential Information refered to in Orders to be issued to the public and the
paries.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT 6
DATED at Boise, Idaho thi~ay of September 2009.
IDAHO POWER COMPANY
By
van E. Walker
Idaho Power Company
POBox 70
Boise, il 83707-0070
By ~¿ý ..
Baron L. Kline
Idaho Power Company
POBox 70
Boise, il 83707-0070
Attorneys for Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By - ~'$~. cd-'~~woodbury ~
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, il 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT 7
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated September 2, 2009, in Case No.
IPC-E-09-24.and agree to be bound by the terms and conditions of such Agreement.
Rady C. Allphin
Printed Name
'fJ Ci'
Si ature
Idaho Power Company
Employer ôt F1rm
1221 West Idaho Street
Business Address
Idaho Power CompanyPar
f/2,/)W íDate
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 2, 2009 in Case No. IPC-E-09-
24 and agree to be bound by the terms and conditions of such Agreement.
Jv CwcJ
Terri Carlock
Idaho Public Utilities Commission
Employer or Firm
472 W. W2lhiRgton Street, Boise, ID 83702
Business Address
Commission Staff
Party
q /8) ;)009
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 2, 2009 in Case No. IPC-E-09-
24 and agree to be bound by the terms and conditions of such Agreement.
~~Rick S erling '7
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Party
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 2,2009 in Case No. IPC-E~09-
24 and agree to be bound by the terms and conditions of such Agreement.
B:tfRandy Lobb
~
Idaho Public Utilities Commission
Employer or Firm
~,-- .,z
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
9/JJ/ ()1
Date