20120117Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN IDAHO POWER COMPANY, S'r~lF;\J~ /7 PrÎ 4= 28
AND HIGH MESA ENERGY, LLC
CASE NO. IPC-E-11-26
This Protective Agreement is entered as of the 9th day of Janua 2012 by Idaho Power
Company ("Idaho Power"), the Idaho Public Utilties Commission Staff ("Staf), and High
Mesa Energy, LLC ("High Mesa") in Case No. IPC-E-l 1-26 (hereinafter collectively referred to
as the "Paries" or individually as a "Pary") in connection with High Mesa's Public Utilty
Regulatory Policies Act of 1978 ("PURPA") Qualified Facilty ("QF") project and power sales
agreement.
RECITALS:
1. WHREAS, Idaho Power desires to make available to the Paries certain
information regarding High Mesa's PURPA QF project and power sales agreement that Stahas
requested though formal discovery requests.
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, certin information considered by a Par 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. WHREAS, Idaho Power and the Paries agree that entering into a Protective
Agreement will 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 fort clear
cut parameters for use of Confdential Information, and will protect Confdential 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, proprietar, or confdential natue (herein referred to as
"Confidential Information") shall be so marked by Idaho Power by stamping the same with a
designation indicating its trade secret, proprieta, or confdential natue and printed on yellow
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND HIGH MESA ENERGY, LLC - i
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 purose other than the
purose of preparation for and conduct of Case No. IPC-E-II-26 and then solely as
contemplated herein and shall keep the Confidential Information secure as trade secret,
confidential, or proprietary information and in accordace with the puroses and intent of this
Agreement.
(c) Persons Entitled to Review.
Individual access to Confdential 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 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 attched 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 writing that he or she has
reviewed the same and has consented to be bound by its terms. The Agreement shall contan 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 OF- 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 Exhbit A to this Protective Agreement.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND HIGH MESA ENERGY, LLC - 2
(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 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 this Agreement, and
shall likewise, be retued to counsel for Idaho Power within thrt (30) days afer 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 this paragraph, and upon request, a written receipt verifying retu shall
be provided by counsel.
(c) Return of Notes.
Any notes maintained by a recipient of Confdential Inormation which embody
or reflect any of the Confidential 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 pursuant to
this Protective Agreement shall in no way limit or waive the right of the providing Par 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 confdentiaL. In any proceeding before the Commssion, 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 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-confidential sumary, reformattng the
information, etc.
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND HIGH MESA ENERGY, LLC - 3
(b) Subsequent Challenge.
In the event that the Paries canot agree as to the character of the information
challen~ed, 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 served upon the Commission and all paries to the proceeding
who have signed on 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 material are deemed to be non-confidential by the Pary.
(c) Challenge Hearing.
The Paries 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 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 withheld from public inspection by any person not bound by the terms of this
Agreement.
(d) Determination.
The Paries 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
uness Idaho Power consents to such conduct. This procedure enables the providing Part to
seek a stay or other relief from the Commission's Order removing the restrictions of this
Agreement from material claimed to be confdential. Such relief may be sought from the
Commssion 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 confdential in the following maner:
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND HIGH MESA ENERGY, LLC - 4
(1) If a Pary intends to use Confidential Information or to make
substative 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 Confdential Information only to the
providing Par, 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 Confdential Information described in paragraph 5(a)(l) shall be placed in the sealed
record.
(3) Only one (I) 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 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 forth 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 Confdential Information (or that portion of the record
containing Confdential 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 Exhibit A as provided in this Protective
Agreement, uness such information is released from the restrctions of this Agreement either
PROTECTIVE AGREEMENT BETWEN IDAHO POWER
COMPANY, STAFF, AND HIGH MESA ENERGY, LLC - 5
through agreement of the paries or after notice to the paries and hearing, pursuant to the order
of the Commission and/or the final order of a cour 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 puroses 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 puroses of an appeal, the providing Par shall be notified which
portion of the sealed record has been designated by the appealing par 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 ths Agreement, and shall be destroyed or shall be retued to counsel for the
providing Pary within thirt (30) days afer final settlement or conclusion of ths matter,
including administrative or judicial review thereof.
7. Use in Pleadings.
Where references to Confdential 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 contaned 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 Commssion 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 tu, be disclosed by them only to individuals
who likewise signed Exhbit A.
8. Summary of Record.
If deemed necessar by the Commission, Idaho Power shall prepare a wrtten 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, AND HIGH MESA ENERGY, LLC - 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 1tt day of Januar 2012.
IDAHO POWER COMPANY
By:~#K
Donovan E. Walker
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 Utilties Commission
472 West Washington Street
Boise, Idaho 83702
Attorney Representing the Idaho Public Utilties
Commission Staff
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AN HIGH MESA ENERGY, LLC - 7
9. Counterparts.
This Agreement may be executed in two or more counterpar, each of which shall be
deemed an original but all of which togeter shall constitute one and the same instrent.
10. This Protective Agrement shall becme effective on the date first above wrtten.
DATED ths 1i1 day of Januar 2012.
IDAHO POWER COMPANY
By:~#1/
Donövan E. Walker
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
--
Attorney Representing Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By: ~~l~Kr ne Sasser 4
Deputy Attorney General
Idaho Public Utilities Commssion
472 West Washington Street
Boise, Idaho 83702
Attorney Representing the Idaho Public Utilities
Commission Staf
PROTECTI AGREEMT BETW IDAHO POWE
COMPAN, STAF, AN HIGH MESA ENERGY, LLC - 7
~
DATED this day of Januar 2012.
HIGH MESA ENERGY, LLC
By:
Richard A. Cumings
Attorney Representing High Mesa Energy, LLC
PROTECTIVE AGREEMENT BETWEEN IDAHO POWER
COMPANY, STAFF, AND HIGH MESA ENERGY, LLC. 8
.
EXHIBIT A
i have reviewed the foregoing Protective Agreement dated Januar q , 2012, in
Case No. IPC-E-11-26 and agree to be bound by the terms and conditions of such Agreement.
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EXHIBIT A