20110913Protective Agreement.PDF

PROTECTIVE AGREEMENT
BETWEEN IDAHO POWER COMPAY,c p 3:58
IDAHO PUBLIC UTILITIES COMMISSION STAFF,.
AND IDAHO OFFICE OF ENERGY RESOURCES
CASE NO.IPC-E-11-16
This Protective Agreement is entered as of the
_______
day of September 2011 by Idaho
Power Company (“Idaho Power”),the Idaho Public Utilities Commission Staff (“Staff’),and
Idaho Office of Energy Resources (“OER”)in Case No.IPC-E-1 1-16 (hereinafter collectively
referred to as the “Parties”or individually as a “Party”)in connection with OER’s Energy
Efficiency Incentives Agreement with Idaho Power.
RECITALS:
1.WHEREAS,Idaho Power desires to make available to the Parties certain
information regarding Energy Efficiency Incentives Agreement that Staff has requested through
formal discovery requests.
2.WHEREAS,the Parties desire to receive such information.
3.WHEREAS,Idaho Power and the Parties 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 nature (as defined in Idaho Code §9-340,et seq.,and
§48-801,etseq.).
4.WHEREAS,Idaho Power and the Parties agree that entering into a Protective
Agreement will expedite the production of documents;will afford the necessary protection to
Idaho Power’s and the Parties’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 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 nature (herein referred to as
“Confidential Information”)shall be so marked by Idaho Power by stamping the same with a
designation indicating its trade secret,proprietary,or confidential nature and printed on yellow
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY,IDAHO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -
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 31.01.01.067 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
purpose of preparation for and conduct of Case No.IPC-E-11-16 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 Parties,employees,experts,agents,or representatives of the undersigned Parties who
have executed an Exhibit A to this Agreement.Such information will be clearly marked and
protected from unauthorized public disclosure.
(d)Nondisclosure AEreement.
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)Challen2e 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
Parties 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 COMPANY,IDAHO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -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 otherwise ordered,Confidential Information,including transcripts of
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 returned 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 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 returned to Idaho Power or,at the option of the recipient,destroyed.
3.Non-waiver of Objection to Admissibility.
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 Party 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,a
Party may challenge the characterization 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,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 summary,reformatting the
information,etc.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY,IDAHO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -3
(b)Subsequent Challenge.
In the event that the Parties cannot 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 parties 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 Party.
(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 necessary,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 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 Party 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 court 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,IDAHO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -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 substantive
reference to Confidential Information described 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 terms of this
Protective Agreement.
(b)
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 forth in this Agreement,if applicable.
(c)In Camera Hearin2 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 3 1.01.01.287.
(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
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY,IDAHO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -5
through agreement of the parties 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 court under seal for the purposes of an appeal,the providing Party shall be notified which
portion of the sealed record has been designated by the appealing party as necessary 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 Party within thirty (30)days after final settlement or conclusion of this matter,
including administrative or judicial review thereof.
7.Use in Pleadinis.
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 forth 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 summary of
the Confidential Information referred to in Orders to be issued to the public and the parties.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY,IDA HO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -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 instrument.
10.This Protective Agreement shall become effective on the date first above written.
DATED this IL’day of September 2011.
IDAHO POWER COMPANY
D ovan E.Walker
daho Power Company
1221 West Idaho Street
Boise,Idaho 83702
Attorney Representing Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:
_______________
Karl .Klein
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise,Idaho 83702
Attorney Representing the Idaho Public Utilities
Commission Staff
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY,IDAHO PUBLIC
UTILITIES COMMISSION STAFF,AND IDAHO OFFICE OF ENERGY RESOURCES -7
EXHIBIT “A”
I have reviewed the foregoing Protective Agreement dated September 13,2011 in Case No.IPC
E-l 1-16 and agree to be bound by the terms and conditions of such Agreement.
(46
RANDY LOBB
Idaho Public Utilities Commission
Employer or Firm
472 W.Washington Street,Boise,Idaho 83702
Business Address
Commission Staff
Party
Date
EXHIBIT “A”
I have reviewed the foregoing Protective Agreement dated September 13,2011 in Case No.IPC
E-11-16 and agree to be bound by the terms and conditions of such Agreement.
STACEY DDHUE
Idaho Public Utilities Commission
Employer or Firm
472 W.Washington Street,Boise,Idaho 83702
Business Address
Commission Staff
Party
9Ji?f xii
Date
EXHIBIT “A”
I have reviewed the foregoing Protective Agreement dated September 13,2011 in Case No.IPC
E-1 1-16 and agree to be bound by the terms and conditions of such Agreement.
Beverly Barkr
Idaho Public Utilities Commission
Employer or Firm
472 W.Washington Street,Boise,Idaho 83702BusinessAddress
Commission Staff
Party
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Date