20111201Protective Agreement.pdf

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PROTECTIVE AGREEMENT
BETWEN IDAHO POWER COMPANY2ll(SttIA II: 55
CASE NO. IPC-E-11-18
This Protective Agreement ("Agreement") is entered as of the ~Dltday of November
2011 by Idaho Power Company ("Idaho Power") and the Idaho Public Utilities Commission
Staff ("Staff) in Case No. IPC-E-II-18 (hereinafter collectively referred to as the "Pares" or
individually as a "Pary") in connection with the early shutdown of the Boardman Power Plant.
RECITALS:
1. WHEREAS, Idaho Power desires to make available to the Staff cerain
information regarding the early shutdown of the Boardman Power Plant.
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, 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 Staff agree that enterng into a protective
agreement will expedite the production of documents; wil afford the necessar 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 settng fort clear cut
parameter 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 fushed that are
claimed to be of a 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, propriet, or confidential natue and printed on yellow
paper. Any claim of confidentiality must be accompanied by an attorney's cerificate that the
materal is protected by law from public disclosure and cite the specific legal authority to support
PROTECTIVE AGREEMENT BETWEN IDAHO POWER COMPAN AN STAFF - 1
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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 temis of ths Agreeent.
(b) Use of Confidential Information.
All perons 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 purose of
preparation for and conduct of Case No. IPC-E-1l-18, and then solely as contemplated herein,
and shall keep the Confidential Information secure as trade secret, confidential, or proprieta
information and in accordance with the purses and intent of this Agreement.
(c) Persons Entitled to Revie~.
Individual access to Confidential Information shall be limited to counsel of the
undersigned Paries, employees, expers, agents, or representatives of the underigned Pares
who have executed an Exhibit A to ths Agreement. Such information wil be clearly marked
and protected from unauthorized public disclosure.
(d) Nondisclosure Agreement.
Confidential Information shall not be disclosed to any peron who has not signed a
nondisclosure agreement on ths form, which is attached hereto as Exhibit A and incorporated
herein. The nondisclosure agreement or Exhibit A shall require the peron to whom disclosure is
to be made to read a copy of this Protective Agreement and to cerfy in wrting that he or she has
reviewed the same and has consented to be bound by its ters. The Agreement shall contain the
signatory's ful name, peranent address, and employer.
( e) Challenge to Company Denial of Access.
Any disputes arsing as a result of Idaho Power's denal of access to Confidential
Information shall be resolved by the Idaho Public Utilities Commssion ("Commission").
2. (a) Copies.
No copies or trancriptions 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
ths Protective Agreement.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAFF - 2
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(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 transcrpts 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 ths Agreement, and shall likewise be
retued to counsel for Idaho Power within thirty (30) days after fial 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 ths paragraph,
and upon request, a wrtten receipt verfyng 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 of Idaho
Power, be either retued to Idaho Power or, at the option of the recipient, destryed.
3. Non-waiver of Objection to Admissibilty.
The fuishing of any document, information, data, study, or other materals pursuat to
ths Protective Agreement shall in no way limit or waive the right of Idaho Power to object to its
relevance or admissibilty in any proceedings before ths 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 Commssion, Staff
may challenge the characterzation 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, 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.
PROTECTIV AGREEMENT BETWEN IDAHO POWER COMPAN AN STAFF - 3
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(b) Subsequent Challenge.
In the event that the Paries 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 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 Exhbit 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 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 duly 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 serng 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 hearng shall be separately bound, segregated,
sealed, and witheld from public inspection by any person not bound by the ters of ths
Agreement.
(d) Determiation.
The Pares 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
pursuat 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 otherse outside the proceedings, for at least five (5) business days
uness Idao 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 ths
Agreement from materal claied to be confidential. Such relief may be sought from the
Commssion or a cour of competent jursdiction.
S. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in this proceeding of materals claied
to be confidential in the following maner:
PROTECTIV AGREEMENT BETWEEN 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 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) Ony one (1) copy of the docuents 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.
While in the custody of the Commission, materials containing Confidential Information
shall be marked "CONFIENTIA -- SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any person except 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 hearng 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
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 perons who have signed an Exhbit A as provided in ths Protective Agreeent, uness such
information is released from the restrctions of ths Agreement either though agreement of the
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPAN AN STAF - 5
Paries or after notice to the Paries and hearng, puruat 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 cour of competent jursdiction for puroses of an appea, 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
porton of the sealed record has been designated by the appealing Pary as necessary to the record
on appeal.
6. Destruction or Return.
Unless otherise ordered, Confidential Information provided pursuat to a discover
request and this Agreement, including transcrpts of any discovery depositions to which a clai
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 reted to counsel for the
providing Pary within thrty (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, arguents, 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 substative references to
Confidential Information shall be placed in a separte section of the pleading or brief and
submitted to the Commission puruant to paragraph 5. This 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 deeed necessar by the Commission, Idaho Power shall prepare a wrtten sumar of
the Confidential Information refered to in Order to be issued to the public and the paries.
PROTECTI AGREEMENT BETWEN 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. This Protective Agreement shall become effective on the date first above wrtten.
DATED this %~ay of November 201 1.
IDAHO POWER COMPAN
By:
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Attorney Representing
Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:
Karl T. Klein
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington Street
Boise, Idaho 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT BETWEN IDAHO POWER COMPAN AN STAFF - 7
9. Counterparts.
This Agreement may be executed in two or more counterpars, each of which shall be
deemed an original but all of which together shall constitute one and the same instrent. .
10. This Protective Agreement shall become effective on the date fIrst above written.
DATED this "?~daY of November 201 1.
IDAHO POWER COMæ AN
By:
Jason B. Wiliams
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Attorney Representing
Idaho Power Company
IDAHO PUBLIC UTIITIES COMMSSION STAF
By:Zl !;f~ 11/2-4/1/
Karl T. Klein
Deputy Attorney General
Idaho Public Utilties Commission
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 this ~~y of November 20 i i in Case
No. IPC-E- i i - i 8 and agree to be bound by the tenns and conditions of such Agreement.
j~Cwtk
Terri Carlock
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street. Boise, ID 83702
Business Address
Commission StaffPar
II/Q2)aoil
Date r i
EXHIBIT "A"
1 have reviewed the foregoing Protective Agreement dated this 2o~ay of November 2011 in Case
No. IPC-E-11-18 and agree to be bound by the terms and conditions of such Agreement.
~~.~Ka leen štockton
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StaffPar
c9 0øil~ ~ 1/
Date
EXHIBIT "A"
1 have reviewed the foregoing Protective Agreement dated this 3D~y of November 2011 in Case
No. IPC-E-II-18 and agree to be bound by the terms and conditions of such Agreement.
tf~
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StaffPar
IJ!UI!JI
Date
EXHIBIT "A"
.2h~I have reviewed the foregoing Protective Agreement dated this ~day of November 2011 in Case
No. IPC-E-11-18 and agree to be bound by the terms and conditions of such Agreement.c~ dt
~dYtW
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise. ID 83702
Business Address
Commission StaffPar
II /2c¡ /¿cJ If
,Date
i:.D
CERTIFICATE OF ATTORNEY
19B OEC -I PH 4= 50
ASSERTION THAT MATERIALS REQUESTED AND PROVIDED DURING THE:
COURSE OF AN IDAHO PUBLIC UTILITIES COMMISSION,PRQ(t~'tlfì:'IŠS\Oi'.i
ARE PROTECTED FROM PUBLIC INSPECTióÑlIJ1 ¡i..U ,~~,i.i,.
Case No. IPC.E.11.18
The undersigned attorney, in accordance with RP 233, hereby certifies that the
attachments provided by Idaho Power Company in its responses to the Idaho Public
Utilities Commission's Production Request Nos. 2 and 5 contain information that is a
trade secret or privileged or confidential as described in Idaho Code § 9-340, et seq.,
and § 48-801, et seq., and as such are exempt from public inspection, examination, or
copying.
DATED this 1 st day of December 2011.
~C0J 5:liams
Counsel for Idaho Power Company