20100901Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEN IDAHO POWER COMPANY AND§~-'
CASE NO. IPC-E-IO-09
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This Protective Agreement is entered as of the 18t day of September 2010 by Idaho Power
Company ("Idaho Power") and the Idaho Public Utilities Commission Staff ("Staff) in Case No.
IPC~E~ i 0~09 (hereinafter collectively refered to as the "Paries" or individually as a "Pary") in
connection with Idaho Power's 2008~2009 Energy Efficiency Rider expenditures.
RECITALS:
1. WHEREAS, Idaho Power desires to make available to the Staff certain
information respecting Idaho Power's expenditue of Energy Effciency Rider fuds in 2008 and
2009.
2. WHEREAS, Staff desires to receive such information.
3. WHEREAS, Idaho Power and Staff anticipate that Idaho Power may provide, or
make available for review, ceai 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 Staff agree that enterng into a protective
agreement wil expedite the production of documents; wil afford the necssary protection to
Idaho Power's and Staffs employees and/or representatives in ths 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 will 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 materals furnshed that are
claimed to be of a trade secret, proprietar, 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, proprietar, or confidential natue and printed on
"colored" paper. Any claim of confidentiality must be accompaned by an attorney's cerificate
that the materal is protected by law from public disclosure and cite the specific legal authority to
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 1
support the claim. IDAP A 31.01.01.067 and 31.01.01.233. Access to and review of
Confidential Information shall be strctly controlled by the ters 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 Confidential
Information for puroses of business or competition or any purose other than the purpose of
preparation for and conduct of Case No. IPC~E~10~09, and then solely as contemplated herein,
and shall keep the Confidential Information sece as trade secret, confidential, or proprietar
information and in accordance with the puroses and intent of ths Agreement.
(c) Persons Entitled to Review.
Individual access to Confidential Information shall be limited to counsel of the
undersigned Paries, employees, expers, agents, or representatives of the undersigned Pares
who have executed an Exhbit A to ths Agreement. Such information will 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 ths form, which is attached hereto as Exhbit A and incorporated
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 cerify in writing 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, peranent address, and employer.
(e) Challenge to Company Denial of Access.
Any disputes arsing as a result of Idaho Power's denial of access to Confidential
Information shall be resolved by the Idaho Public Utilties Commission ("Commission").
2. (a) Copies.
No copies or transcrptions of the Confidential Information shall be made by Staff except
as necessar to make the information available to individuas who have executed an Exhibit A to
this Protective Agreeent.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 2
(b) Return of Confidential Information.
Upon request of Idaho Power, all original documents and copies of the Confidential
Information shall be (1) retued to Idaho Power or (2) shredded by the holder of such
documents.
Unless otherise ordered, Confidential Information, including trscrpts 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 ths Agreement, and shall likewise be
retued to counsel for Idaho Power withn thirt (30) days after final setlement 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 ths paragraph,
and upon request, a wrtten receipt verfyng retu shall be provided by counel.
(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 retued 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 materals pursuat to
this Protective Agreement shall in no way limit or waive the right of Idaho Power to object to its
relevance or admissibility 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, Staff
may challenge the characterzation 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-confidential sumar, reformatting the information,
etc.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 3
(b) Subsequent Challenge.
In the event that the Pares caot 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 Commssion to rule upon the disputed
information. The Petition shall be sered upon the Commssion and all paries to the proceeding
who have signed an Exhibit A as provided in ths Protective Agreement. The Petition shall
designate with specificity the document or material challenged and state the grounds upon which
the subject materal are deemed to be non-confidential by the Pary.
(c) Challenge Hearig.
The Paries shall request that the Commission conduct an in camera proceeding where
only those persons dily authorized to have access to such challenged materals under ths
Protective Agreement shall be present. Ths hearng shall be commenced no earlier than five (5)
business days after sering the Petition on Idaho Power and the Commission. The record of the
in camera hearng shall be marked "CONFIDENTIA - Subject to Protective Agreement."
To the extent necessar, the transcrpt of such heag shall be separately bound, segregated,
sealed, and witheld from public inspection by any peron not bound by the terms of ths
Agreement.
(d) Determiation.
The Paries wil ask the Commission to issue an Order deterining whether any
challenged information or materal 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 materal or use it
in the public record, or otherise outside the proceedings, for at least five (5) business days
uness Idaho Power consents to such conduct. Ths procedure enables the providing Pary to
seek a stay or other relief from the Commission's Order removing the restrictions of this
Agreement from materal claimed to be confidentiaL. Such relief may be sought from the
Commission or a cour of competent jursdiction.
5. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in ths proceeding of materals claimed
to be confidential in the following maner:
PROTECTIVE AGREEMENT BETWEN IDAHO POWER COMPAN AN STAFF - 4
(1) If Staff intends to use Confidential Information or to make
substantive reference to Confidential Information supplied to it under ths Agreeent, it shall
give reasonable prior notice of such intention to Idaho Power 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 (1) copy of the used Confidential Information or substative
reference to Confidential Information or substantive reference to Confidential Information
descrbed in paragraph 5(a)(1) shall be placed in the sealed record.
(3) Only one (I) 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 seaed record shall
be tendered to the Commission and shall be maintained in accordance with the ters of this
Protective Agreement.
(b) Seal.
Whle 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 excet under the conditions
set fort in ths Agreement, if applicable.
(c) In Camera Hearing and Transcripts.
Any Confidential Information that must be orally disclosed at a hearg 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 transcrption of
any examination or other reference to Confidential Information (or that portion of the record
containg 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 restrctions of this Agreement either through agreement of the
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 5
Paries or after notice to the Pares and hearng, pursuant to the order of the Commission and/or
the final order of a cour having final jursdiction.
(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 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
portion of the sealed record has been designated by the appealing Pary as necessar to the record
on appeaL.
6. Destruction or Return.
Unless otherise ordered, Confidential Information provided pursuant to a discover
request and ths Agreement, including transcrpts of any discover depositions to which a claim
of confidentiality is made, shall remai under seal, shall continue to be subject to the protective
requirements of this Agreement, and shall be destroyed or shall be reted to counsel for the
providing Pary within thirt (30) days after final settlement or conclusion of this matter,
including admistrative or judicial review thereof.
7. Use in Pleadigs.
Where references to Confidential Information in the seaed recrd 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 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 puruant to paragraph 5. Ths sealed section shall be sered 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 individuals
who likewise signed Exhibit A.
8. Summary of Record.
If deemed necessar by the Commission, Idaho Power shall prepare a written sumary of
the Confidential Information refered to in Orders to be issued to the public and the paries.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 6
9. Counterparts.
This Agreement may be executed in two or more counterars, each of which shall be
deemed an original but all of which together shall constitute one and the same instrent.
10. Ths Protective Agreement shall become effective on the date fit above wrtten.
DATED this 1st day of September 2010.
IDAHO POWER COMPAN
By: eX,; ii2. '-tJ ~ ¿
Lisa D. Nordstroml
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Attorney Representing
Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:df£-Neil~
Deputy Attorney General
Idaho Public Utilties Commssion
472 West Washington Street
Boise, Idaho 83702
Attorney Representing
Idaho Public Utilties Commission Staff
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 1,2010 in Case No. IPC-E-
10-09 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission Staff
Party