20101026Protective Agreement.pdf

PROTECTIVE AGREEMENT
IDAHO PO~~~~~~PANY AND tRiÛ OCl 26 PM 2: 06
IDAHO PUBLIC UTILITIES COMMISSION STAFF
This Protective Agreement is entered into this ò-~y of October 2010 by Idaho
Power Company and the Idaho Public Utilities Commission (Staff.
Recitals:
1. WHEREAS, Idaho Power Company (Idao Power) desires to make available to the Staff
certin information respecting Idaho Power's Application in Case No. IPC-E- 1 0-24, and Staf 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 natue (as defined in Idaho Code § 9-340 et seq. and § 48-801 et seq.).
3. WHEREAS, Idao Power and Staff agree that entering into a Protective Agreement will
expedite the production of documents; wil aford the necessary 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 forth clear cut parameters for use of
Confidential Information, and will protect Confidential Information which might be provided
hereafer,
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 confdential nature (herein referred
to as "Confidential Information") shall be so marked by the par or entity providing the information
by staping the same with a designation indicating its trade secret, proprieta 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 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 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 the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secret, confidential or proprieta information and in accordace 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 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
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 attched hereto as Exhibit "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 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. Such agreement shall be delivered to
counsel for the providing par, 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 par, all original documents and copiei: of the Confidential
Information shall be: (1) retured to the providing par or (2) shredded by the holder of such
documents within thirt (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 shall likewise, be
returned to counsel for the providing par within thirt (30) days after final settlement or conclusion
of the proceedings, including administrative or judicial review thereof. After retur of documents
pursuant to this paragraph, and upon request, a wrtten 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 the providing
par, be either retured to the providing par 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 pursuat to this
Protective Agreement shall in no way limit or waive the right of the providing par 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 that a par claims is confidentiaL. Any par may challenge the characterization of any
information, document, data or study claimed by the providing par to be a trade secret, proprieta
or confidential information. A par seeking to challenge the confdentiality of any information shall
first contact counsel for the providing par and attempt to resolve any difference by stipulation.
Resolution may include removing the confidential classifications, creating a non-confdential
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 paries 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 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 this
Protective Agreement shall be present. This hearng shall be commenced no earlier than five (5)
business days afer 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 withheld from public inspection by any person not bound by the terms of this Agreement.
(d) Determination.
The parties wil 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 §§ 9-335,9-337 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 otherwise outside the proceedings for at least five (5) business days unless the providing
par consents to such conduct. This procedure enables 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 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 substative
reference to Confidential Information only to the providing par, 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 substative reference to Confidential Information
described in paragraph 5(a)(l) shall be placed in the sealed record.
(3) Only one (l) 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.
While in the custody of the Commission, materials contaning Confidential Inormation shall
be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
forth 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 Confdential
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 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
paries or after notice to the paries and hearng, pursuant to the order of the Commission and/or the
final order of a cour having final jurisdiction.
(e) AppeaL.
Should an appeal from the )?roceeding be taken, sealed portions of the record may be
forwarded tôany court of competent jursdiction for puroses 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 purposes of an appeal, the providing par shall be notified which portion of
the sealed record has been designated by the appealing par 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 (shall be returned to counsel for the
PROTECTIVE AGREEMENT 5
providing par) within thirt (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 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 serviced only on counel of record
who have signed the nondisclosure agreements set forth in Exhibit "A" attched 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
sumar of the Confidential Information referred 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 this d6 day of October 2010.
IDAHO POWER COMPANY
B.d£:~
Donovan E. Walker
Idaho Power Company
PO Box 70
Boise, ID 83707-0070
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By
Scott D. Woodbur
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this:-lay of October 2010
in Case No. IPC-E-I0-24 and agree to be bound by the terms and conditions of such Agreement.
??iJ 5rtRICK STERLINci
IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFFPar