20110512Protective Agreement.pdf

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PROTECTIV AGREEMENT ú~~, 0/)'/ /~
BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVE~ (? '4 ()
CASE NO. IPC-E-II-05 "~~.~
This Protective Agreement is entered into as of the 6th day of May 2011 by Idaho Power
Company ("Idaho Power"), the Idaho Public Utilties Commission Staff ("Staff), and the
undersigned Interenors in Case No. IPC-E-II-05 (hereinafter collectively referred to as the
"Parties" or individually as a "Pary") in connection with Idaho Power's recover of 2010
Energy Efficiency Rider expenditues.
RECITALS:
1. WHEREAS, Idaho Power desires to make available to the Paries cerain
information respecting Idaho Power's expenditue of Energy Effciency Rider fuds in 2010.
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, cerain 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; will 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 forth 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 furnshed that are
claimed to be of trade secret, proprietar, or confidential natue (herein refered 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 yellow
paper. Any claim of confidentiality must be accompanied by an attorney's certificate that the
materal is protected by law from public disclosure and cite the specific legal authority to support
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN, STAFF, & INERVENORS-1
the claim. IDAPA 31.01.01.067 and 31.01.01.233. Access to and review of Confidential
Information shall be strctly controlled by the ters ofthis 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-ll-05 and then solely as
contemplated herein and shall keep the Confidential Information secure as trade secret,
confidential, or proprietary 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, 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 Exhibit 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 ths Protective Agreement and to certify 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, permanent 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 transcriptions of the Confidential Information shall be made by the
Paries except as necessary to make the information available to individuals who have executed
an Exhibit A to this Protective Agreement.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN, STAFF, & INTERVENORS - 2
(b) Return of Confidential Information. Upon request of Idaho Power, all
original documents and copies of the Confidential Information shall be (1) returned to Idaho
Power or (2) shredded by the holder of such documents.
Unless otherwse ordered, Confidential Information, including transcripts of
depositions containing information to which a claim of confidentiality is made, shall remai
under seal, shall continue to be subject to the protective requirements of ths Agreeent, and
shall likewise, be retued to counsel for Idaho Power withn thirty (30) days afer 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 wrtten receipt verfyg retu 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
ofIdaho Power, be either returned to Idaho Power or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty.
The fuishig 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 characterzation of any information, document, data, or study claied
by Idaho Power to be a trade secret, proprietar, or confidential information. If seeking to
challenge the confidentiality of any information, the 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 sumar, reformatting the
information, etc.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN, STAF, & INERVENORS - 3
(b) Subsequent Challenge.
In the event that the Pares 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 sered 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 Pares shall request that the Commission conduct an in camera proceeding
where only those persons duly authorized to have access to such challenged materals under this
Protective Agreement shall be present. This hearng shall be commenced no earlier than five (5)
business days after serng the petition on Idaho Power and the Commission. The record of the
in camera heang shall be marked "CONFIDENTIAL -- Subject to Protective Agreement."
To the extent necessar, the transcrpt 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) Determiation.
The Paries will ask the Commission to issue an Order deterining wheter 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 Pares shall not disclose such challenged materal 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. Ths procedure enables the providing Pary to
seek a stay or other relief from the Commission's Order removing the restrctions of this
Agreement from material 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 this proceeding of materials
claimed to be confidential in the following maner:
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER CQMPANY, STAFF, & INERVENORS - 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 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 substantive
reference to Confidential Information descrbed in paragraph 5(a)(1) 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 ters of this
Protective Agreement.
(b) Seal.
Whle in the custody of the Commission, materals containing Confidential
Information shall be marked "CONFIDENTIA -- SUBCT TO ATTORNEY'S
CERTIFICATE OF CONFIENTIAITY" and shall not be examined by any person except
under the conditions set forth in ths Agreement, if applicable.
(c) In Camera Hearig 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 perons 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
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 Exhbit A as provided in this Protective
Agreement, unless such information is released from the restrctions of this Agreement either
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN, STAFF, & INERVENORS - 5
though agreement of the paries or after notice to the pares and hearing, 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 taken, sealed portons of the record may
be forwarded to any 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 forwaraed
to a cour under seal for the puroses of an appeal, the providing Pary 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 discovery
request and ths Agreement, including transcrpts 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 Pary withn thirty (30) da.ys 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 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. This sealed section shall be served only
on counsel of record who have signed the non-disclosure agreements set fort in Exhbit 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 wrtten sumar of
the Confidential Information refered to in Orders to be issued to the public and the paries.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN, STAFF, & INERVENORS - 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 first above written.
DATED this 6th day of May 2011.
IDAHO POWER-COMPANY
By:~p.~isa D. Nordstr m
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Attorney Representing Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
~ .-By:
Weldon B. Stutzman
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington Street
Boise, Idaho 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN, STAFF, & INERVENORS - 7
INDUSTRIAL CUSTOMERS OF IDAHO POWER
By:_Ø/c¿~
Peter J. Richardson
Attorney Representing
Industrial Customers of Idaho Power
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, STAFF, & INTERVENORS - 8
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated May 6, 2011 in Case No. IPC-E-11-05
and agree to be bound by the terms and conditions of such Agreement.
~tò J&RANDY LOBB
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission Staff
Pary
5/t/.2()/(
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated May 6,2011 in Case No. IPC-E-11-05
and agree to be bound by the terms and conditions of such Agreement.
:JMnL ~cJ
TERR CARLOCK
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission StaffPar
~ q ¡JOll
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated May 6, 20 i i in Case No. IPC-E- i i -05
and agree to be bound by the terms and conditions of such Agreement.
~L ANDERSON
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission Staff
Pary
6-lo-11
Date
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated May 6, 20 i i in Case No. IPC-E- i i -05
and agree to be bound by the terms and conditions of such Agreement.
~~tMO'~STACEY OHUE
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission StaffPar
¿;J'l lWt/Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated May 6, 2011 in Case No. IPC-E-II-05
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
Business Address
Commission StaffPar
5"-6" II
Date
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EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated May 6, 20 II in Case No. IPC-E-II-05
and agree to be bound by the terms and conditions of such Agreement.
BEVERLY A. BARKER
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho 83702
Business Address
Commission Staff
Pary
y~~LDate
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated May 6, 2011, in Case No.
IPC-E-II-05 and agree to be bound by the terms and conditions of such Agreement.
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EXHIT A
EXHffITA
I have reviewed the foregoing Protective Agreement dated May 6, 2011, in Case No.
IPC-E-ll.05 and agree to be bound by the terms and conditions of such Agreement.
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EXHIBIT A