20120111Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN IDAHO POWER COMPAN, Sli\FJMi i I Mî 10: 50
AND DYNAMIS ENERGY, LLC
CASE NO. IPC-E-11-25
F! ¡:.:
This Protective Agreement is entered as of the 9th day of Januar 2012 by Idaho Power
Company ("Idaho Power"), the Idaho Public Utilities Commssion Staff ("Staft), and Dynams
Energy, LLC ("Dynamis Energy") in Case No. IPC-E-11-25 (hereinafter collectively referred to
as the "Paries" or individually as a "Par") in connection with Dynamis Energy's Public Utilty
Regulatory Policies Act of 1978 ("PURP A") Quaified Facilty ("QF") project and power sales
agreement.
RECITALS:
1. WHREAS, Idaho Power desires to make available to the Paries certain
information regarding Dynams Energy's PURPA QF project and power sales agreement that
Staf has requested though formal discovery requests.
2. WHEREAS, the Paries desire to receive such information.
3. WHREAS, Idaho Power and the Paries anticipate that Idaho Power may
provide, or make available for review, certin information considered by a Par to be of a trade
secret, privileged, or confdential 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 will expedite the production of documents; will aford 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 forth clear
cut parameters for use of Confidential Inormation, and will protect Coìidential 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 fushed that are
claimed to be of trade secret, proprieta, or confidential natue (herein referred to as
"Confdential Information") shall be so marked by Idaho Power by staping the same with a
designation indicating its trade secret, proprietar, or confdential natue and printed on yellow
PROTECTIVE AGREEMENT BETWEN IDAHO POWER
COMPANY, STAFF, AND DYNAMIS ENERGY, LLC - 1
paper. Any claim of confdentiality must be accompanied by an attorney's certficate 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 strctly controlled by the terms of ths 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 ths Agreement shall neither use nor disclose the
Confdential 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-25 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 puroses 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 Paries who
have executed an Exhibit A to ths Agreement. Such inormation will be clearly marked and
protected from unauthorized public disclosure.
(d) Nondisclosure Agreement.
Confdential Inormation 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 this Protective Agreement and to certify in wrting that he or she has
reviewed the same and has consented to be bound by its terms. The Agreement shall contain the
signatory's ful 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 Utilties Commssion ("Commission").
2. (a) Copies.
No copies or transcriptions of the Confdential Information shall be made by the
Paries except as necessar to make the inormation available to individuals who have executed
an Exhibit A to ths Protective Agreement.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND DYNAMIS ENERGY, LLC - 2
(b) Return of Confidential Information. Upon request of Idaho Power, all
original documents and copies of the Confidential Information shall be (I) retued to Idaho
Power or (2) shredded by the holder of such documents.
Unless otherwse ordered, Confidential Information, including transcripts of
depositions contaning 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 withn thirt (30) days after final
settlement or conclusion of the proceedings before the Commission which Confdential
Information is relevant, including administrative or judicial review thereof. After retu of
documents pursuant to ths paragraph, and upon request, a wrtten receipt verifying retu shall
be provided by counsel.
( c) Return of Notes.
Any notes maintained by a recipient of Confdential Information which embody
or reflect any of the Confdential Information provided under this Agreement shall, upon request
ofIdaho Power, be either retued to Idaho Power 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 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
Par may challenge the characterization of any information, document, data, or study claimed
by Idaho Power to be a trade secret, proprieta, or confdential information. If seeking to
challenge the confdentiality of any information, the Par shall first contact counsel for Idaho
Power and attempt to resolve any difference by stipulation. Resolution may include removing
the confdential classifications, creating a non-confdential sumary, reformatting the
information, etc.
PROTECTIE AGREEMENT BETWEN IDAHO POWER
COMPANY, STA~F, AND DYNAMIS ENERGY, LLC - 3
(b) Subsequent Challenge.
In the event that the Parties canot agree as to the character of the information
challenged, the Paries may challenge the confdentiality of the information by petitioning in any
proceeding in which the information is relevant the Commission to rue upon the disputed
information. The petition shall be served upon the Commission and all pares to the proceeding
who have signed on Exhbit A as provided in ths Protective Agreement. The petition shal
designate with specificity the document or material challenged and state the grounds upon which
the subject material are deemed to be non-confdential by the Par.
(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 afer serving the petition on Idaho Power and the Commssion. 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 this
Agreement.
(d) Determination.
The Pares 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 Paries shall not disclose such challenged material or use it
in the public record, or otherwse 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 Commssion'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 ths proceeding of materials
claimed to be confdential in the following maner:
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND DYNAMIS ENERGY, LLC - 4
(1) If a Pary intends to use Confidential Information or to make
substative reference to Confdential 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 Confdential Information or substative reference to Confidential Information only to the
providing Pary, and such other Paries, if any, who have executed an Exhibit A to ths Protective
Agreement.
(2) One (1) copy of the used Confdential Information or substative
reference to Confdential 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 maintaied in accordance with the terms of this
Protective Agreement.
(b) Seal.
Whle in the custody of the Commission, materials containing Confdential
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 Confdential Information that must be orally disclosed at a hearing in the
proceedings shall be offered at an in camera hearng, attended only by persons authorized to
have access to the information under ths Protective Agreement. Similarly, any transcription of
any examination or other reference to Confidential Inormation (or that portion of the record
containing Confidential Information) shall be marked and treated as provided herein for
Confdential Information. See IDAPA 31.01.01.287.
(d) Access to Record.
Access to sealed testimony, records, and inormation shal be limited to the
Commssion and persons who have signed an Exhibit A as provided in ths Protective
Agreement, unless such information is released from the restrictions of this Agreement either
PROTECTIVE AGREEMENT BETWEN IDAHO POWER
COMPANY, STAFF, AND DYNAMIS ENERGY, LLC - 5
though agreement of the paries or afer notice to the paries 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 portons of the record may
be forwarded to any cour of competent jurisdiction 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 puroses of an appeal, the providing Par shall be notified which
porton 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 Inormation provided pursuat to a discovery
request and ths Agreement, including transcripts of any discovery depositions to which a claim
of confdentiality 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 retued to counsel for the
providing Pary within thrt (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 exhbit number or some other description that wil not disclose the
substative Confdential Information contained therein. Any use of or substantive references to
Confdential Information shall be placed in a separate section of the pleading or brief and
submitted to the Commission pursuant to paragraph 5. Ths sealed section shall be served only
on counsel of record who have signed the non-disclosure agreements set fort in Exhbit A
attached to ths 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 sumary of
the Confidential Information referred to in Orders to be issued to the public and the paries.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND DYNAMIS ENERGY, LLC - 6
9. Counterparts.
This Agreement may be executed in two or more counterars, each of which shall be
deeed an origial 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 Ji day of Janua 2012.
IDAHO POWER COMPAN
By:
anE. Waler
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Attorney Representing Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By:
Krstine Sasser
Deputy Attorney General
Idaho Public Utilities Commssion
472 West Washington Street
Boise, Idaho 83702
Attorney Representing the Idaho Public Utilities
Commission Staff
PROTECTIV AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND DYNAMS ENERGY, LLC - 7
9. Counterparts.
Ths Agreement may be executed in two or more counterar, each of which shall be
deemed an origial but all of which together shall constitute one and the same instrent.
10. This Protective Agrement shall become effecve on the date fist above wrtten.
DATED ths Ji day of Januar 2012.
IDAHO POWER COMPAN
By:
an E. Walker
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Attorey Representig Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By: t:~ ~QI\
Kr ne Sasser
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Stree
Boise, Idaho 83702
Attorney Representing the Idaho Public Utilities
Commssion Staff
PROTECTVE AGREEMEN BETEN IDAHO POWER
COMPAN, STAF, AN DYNAMS ENEGY, LLC - 7
t'l
D A TED th is q day of January 2012.
DYNAMISENERGY, LLC ,
By:RJi LL!~
Ronald L. Wiliams
Attorney Representing Dynamis Energy, LLC
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY. STAFF, AND DYNAMISENERGY, LLC. 8
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EXHffITA
i have reviewed the foregoing Protective Agreement dated Januar q , 2012, in
Case No. IPC-E-11-25 and agree to be bound by the terms and conditions of such Agreement.
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Employer or Firm
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Business Address
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Par
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EXHIBIT A