20100224Protective Agreement.pdf

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This Protective Agreement is entered as of the 10th day of Februar 2010 by IdahK~çwer\'N'/'/'",
Company ("Idaho Power"), the Idaho. Public Utilties Commission Staff ("Staff), and"tle
undersigned Intervenors in Case No. IPC-E-1O-01 (hereinafter collectively referred to as the
PROTECTIVE AGREEMENT
CASE NO. IPC-E-IO-Ol
"Paries" or individually as a "Pary").
RE"CITALS:
1. WHEREAS, Idaho Power desires to make available to the Paries certin
information respecting Idaho Power's Application to establish its base level for net power supply
expenses for 2010, which has been docketed as Case No. IPC-E-1O-0L.
2. WHEREAS, the Paries desire to receive such information.
3. WHEREAS, Idaho Power and the Paries anticipate that Idaho Power may
provide, or make available for review, certin 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 will 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 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 that are
claimed to be of trade secret, proprieta, or confidential natue (herein referred to as
"Confidential Information") shall be so marked by Idaho Power by stamping the same with a
designation indicating its trade secret, proprieta, or confidential nature 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
PROTECTIVE AGREEMENT - 1
support the claim. IDAPA 31.01.01.067 and 31.01.01.233. Access to and review of
Confidential Information shall be strictly controlled by the terms of this 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 Confidential
Information for purposes of business or competition or any purpose other than the purose of
preparation for and conduct of Case No. IPC-E-10-01 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 purposes and intent of this Agreement.
(c) 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 ths 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 Exhibit A and incorprated
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 writing that he or she has
reviewed the same and has consented to be bound by its terms. The Agreement shall contain the
signatory's full 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 Confidential
Information shall be resolved by the Idaho Public Utilities Commission ("Commission").
2. (a) Copies.
No copies or transcriptions of the Confidential Information shall be made by the Paries
except as necessar to make the information available to individuals who have executed an
Exhibit A to this Protective Agreement.
PROTECTIVE AGREEMENT - 2
(b) Return of Confidential Information.
Upon request of Idaho Power, all original documents and copies of the Confidential
Information shall be (l) retued 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 thirty (30) days after final settlement or conclusion of
the proceedings before the Commission which Confidential Information is relevant, including
administrative or judicial review thereof. After retu of documents pursuant to this paragraph,
and upon request, a written receipt verifying retur shall be provided by counsel.
(c) Return of Notes.
Any notes maintained by a recipient of Confidential Information which embody or reflect
any of the Confidential Information provided under this Agreement shall, upon request of Idaho
Power, be either retured to Idaho Power 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 materials pursuant to
this 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 Idaho 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, proprieta, or confidential information. If seeking to
challenge the confidentiality of any information, a Part 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-confidential summar, reformatting the
information, etc.
PROTECTIVE AGREEMENT - 3
(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
proceeding in which the information is relevant the Commission to rule 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.
(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 hearing 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 hearing shall be marked "CONFIDENTIAL - Subject to Protective 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 this
Agreement.
(d) Determination.
The Parties 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
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 Pary to
seek a stay or other relief from the Commission's Order removing the restrictions of this
Agreement from material claimed to be confidentiaL. Such relief may be sought from the
Commission or a cour of competent jurisdiction.
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 manner:
PROTECTIVE AGREEMENT - 4
(1) If a Pary 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 Idaho Power and shall provide copies of the
used Confidential Information or substative 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 (1) copy of the used Confdential Information or substantive
reference to Confidential Information or substantive reference to Confidential Information
described in paragraph 5(a)(l) 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 maintaned in accordance with the terms of this
Protective Agreement.
(b) SeaL.
While in the custody of the Commission, materials containing 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 hearing in the
proceedings shall be offered at an in camera hearing, 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 portion of the record
containing Confidential 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, unless such
information is released from the restrictions of this Agreement either through agreement of the
PROTECTIVE AGREEMENT - 5
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 jursdiction.
(e) AppeaL.
Should an appeal from the proceeding be taken, sealed portions of the record may be
forwarded to any court of competent jursdiction 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 court under seal for the puroses of an appeal, the providing Par shall be notified which
portion of the sealed record has been designated by the appealing pary as necessar to the record
on appeal.
6. Destruction or Return.
Unless otherwse ordered, Confidential Information provided pursuat 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 or shall be retured to counsel for the
providing Pary within thirty (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, 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
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. This sealed section shall be served only
on counsel of record who have signed the non-disclosure agreements set fort in Exhibit A
attached to this Protective Agreement and may, in tu, be disclosed by them only to individuas
who likewise signed Exhibit 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.
PROTECTIVE AGREEMENT - 6
9. Counterparts.
Ths Agreement may be executed in two or more counterars, each of which shall be
deeed an original but all of which together shall constitute one and the same instrent.
10. Ths Protective Agreement shall become effective on the date first above written.
DATED ths g day of February 2010.
IDAHO POWER COMPAN
By:~~Baron L. Kline
1221 West Idaho Street
Boise, Idaho 83702
IDAHO PUBLIC UTILITIES COMMSSION STAFF
By:
Scott Woodbur
Deputy Attorney General
Idaho Public Utilities Commssion
472 West Washington Strt
Boise, Idaho 83702
Attorneys Representig
Idaho 'Public Utiities Commssion Staff
PROTECTIV AGREME - 7
9. Counterpart.
Ths Agrement may be exected in two or more counterar each of which shall be
deeed an original but all of which together shall constitute one and the same instrent.
10. Ths Protective Agreement shall become effective on the date first above wrtten.
PADATED this I D day ofFebniar 2010.
IDAHO POWER COMPAN
By:~~Baron L. Kline
1221 West Idaho Stret
Boise, Idaho 83702
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:
Scott oodbur
Deput Attorney General
Idaho Public Utilties Commssion
472 Wes Wasgton Str
Boise, Idaho 83702
Attorneys Representig
Idaho 'Public Utiities Comsson Staff
PROTECTI AGREEN - 7
PROTECTIVE AGREEMENT - 8
TH INDUSTRIL CUSTOMERS OF IDAHO
POWER
By:~l;~Peter J. Rich. dson
Attrney Representing
The Industrial Cusmers of Idaho Power
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EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated February 10,2010 in Case No. IPC-E-
10-01 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, Idaho 83702
Business Address
Commission StaffPar
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Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated Februar 10, 2010 in Case No. IPC-E-
10-01 and agree to be bound by the tenns and conditions of such Agreement.
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TERR CARLOCK
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission StaffPar
Jlll.laOJO
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated February 10,2010 in Case No. IPC-E-
10-01 and agree to be bound by the terms and conditions of such Agre
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission Staff
Pary
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated February 10, 2010, in Case
No. IPC-E-IO-Ol and agree to be bound by the terms and conditions of such Agreement.
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Business Addres
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EXHIBIT A
EXHIT A
I have reviewed the foregoing Proteve Agrment dated Febru 10, 2010, in Cas
No. IPC-E-1 0-0 1 and agr to be bound by the tes and conditions of such Agrement.
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EXHIBIT A
EXHIT A
I have reviewed the foregoing Protective Agrement dated Febru 10, 2010, in Cas
No. IPC-E-IO-Ol and agr to be bound by the term and conditions of such Agrement.
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EXHIBIT A