20110208Protective Agreement.pdf

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PROTECTIVE AGREEMENT úh /A l'~..
BETWEEN IDAHO POWER COMPANY, STAFF, & INTERV~S ~ý
CASE NO. IPC-E-10-46 'è)' .9'OiJ
This Protective Agreement is entered as of the 28th day of Januar 2011 by Idaho
Company ("Idaho Power"), the Idaho Public Utilties Commission Staff ("Staff'), and the
undersigned Intervenors in Case No. IPC-E-I0-46 (hereinafter collectively referred to as the
"Paries" or individually as a "Party") in connection with Idaho Power's Irrigation Peak Rewards
Changes.
RECITALS:
1. WHEREAS, Idaho Power desires to make available to the Paries certain
information respecting Idaho Power's Application proposing changes to its Irrgation Peak
Rewards program.
2. WHEREAS, the Parties desire to receive such information.
3. WHEREAS, Idaho Power and the Paries 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.)
4. WHEREAS, Idaho Power and the Paries agree that entering into a Protective
Agreement wil expedite the production of documents; wil afford the necessar protection to
Idaho Power's and the Paries' 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 Confdential 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 furnished that are
claimed to be of trade secret, proprietary, or confidential natue (herein referred to as
"Confdential Infonnation") 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 accompanied by an attorney's certificate
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS-1
that the material is protected by law from public disclosure and cite the specific legal authority to
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 purose other than the purose of
preparation for and conduct of Case No. IPC-E-l 0-46 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.
Individual access to Confidential Information shall be limited to counsel of the
undersigned Paries, employees, experts, agents, or representatives of the undersigned Pares
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 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.
(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 BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 2
(b) Return of Confidential Information.
Upon request of Idaho Power, all original documents and copies of the Confdential
Information shall be (l) returned 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 thirt (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 return of documents pursuant to this paragraph,
and upon request, a written receipt verifying return 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 retued to Idaho Power or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty.
The furnishing 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 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 Idaho Power claims is confdentiaL. In any proceeding before the Commission, a
Par may challenge the characterization of any information, document, data, or study claimed
by Idaho Power to be a trade secret, proprietar, or confidential information. If seeking to
challenge the confidentiality of any information, the Party 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 BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 3
(b) Subsequent Challenge.
In the event that the Parties canot agree as to the character of the information
challenged, the Parties 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 non-confidential by the Pary.
(c) Challenge Hearing.
The Parties 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 witheld from public inspection by any person not bound by the terms of ths
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 Parties 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 Par to
seek a stay or other relief from the Commission's Order removing the restrictions of ths
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 BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 4
~
(1) If a Party 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 substantive reference to Confidential Information only to the
providing Party, and such other Parties, 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
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 maintained 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 nave signed an Exhibit A as provided in this Protective Agreement, unless such
information is released from the restrictions of this Agreement either though agreement of the
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 5
paries or after notice to the parties and hearing, 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 of the court. If a portion of the record is forwarded
to a cour 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 or shall be returned to counsel for the
providing Paiiy within thirty (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 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. 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 turn, be disclosed by them only to individuals
who likewise signed Exhibit A.
8. Summary of Record.
If deemed necessary by the Commission, Idaho Power shall prepare a written sumar of
the Confidential Information referred to in Orders to be issued to the public and the paries.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 6
9. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrment.
10. This Protective Agreement shall become effective on the date first above written.
DATED this 28th day of January 2011.
IDAHO POWER COMPANY
By:≪?tt~
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Attorney Representing Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:(-"-2c, ~~
Weldon B(Stutzman
Deputy Attorney General
fdaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS-7
IDAHO IRRIGATION PUMPERS ASSOCIATION,INC. ~)(~/ ()dlBy:~~~
i . Olsen
Attorney Representing
Idaho Irrigation Pumpers Association, Inc.
-'
PROTECTIVE AGREI:'.' 'llETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 8
EXHIBIT HAt'
I have reviewed the foregoing Protective Agreement dated January 28,2011 in Case No.
IPC-E-IO-46 and agree to be bound by the terms and conditions of such Agreement.
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IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
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Date
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated January 28, 201 i in Case No.
IPC-E-I0-46 and agree to be bound by the terms and conditions of such Agreement.
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TERRI CARLOCK
IDAHO PUBLIC UTJLITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, lDAHO 83702
Business Address
COMMISSION STAFF
Party
a II ) l~()) )
Date
RXHIBIT " A"
I have reviewed the foregoing Protective Agreement dated January 28, 2011 in Case No.
ipe-E-l 0-46 and agree to be bound by the terms and conditions of such Agreement.
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IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
íii \ \ 11)\,iDate
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated January 28) 2011 in Case No.
IPC-E-IO-46 and agree to be bound by the terms and conditions of such Agreement.
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IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
~72 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAPP
Party
2(1 IIDate '
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated January 28, 20 I i in Case No.
IPC-E-IO-46 and agree to be bound by the terms and conditions of such Agreement.
~~
MATTHEW ELAM
IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
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EXHIBIT A
1 have reviewed the foregoing Protective Agreement dated Januarv 28,2011, in Case No... .. '-1 ..
IPC-E- i 0-46 and agree to be bound by the terms and conditions of such Agreement.
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