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Home My WebLink About20130815Protective Agreement.pdfPROTECTTVE AGREEMENT BETWEEN ENERNOC, INC., IDAHO POWER COMPANY, STAFF, & INTERVENORS CASE NO. IPC-E-13.14 This Protective Agreement is entered as of the 30 day of July 2013 by EnerNOC, Inc. ("EnerNOC"), Idaho Power Company ("Idaho Power"), the Idaho Public Utilities Commission Staff ("Staff), and the undersigned Intervenors in Case No. IPC-E-13-14 (hereinafter collectively referred to as the "Parties" or individually as a "Party") in connection with Idaho Power's continuation of demand response programs. RECITALS: l. WHEREAS, EnerNOC desires to make available to the Parties certain information respecting EnerNOC's operation of the FlexPeak Management demand response program for industrial and large commercial customers. 2. WHEREAS, the Parties desire to receive such information. 3. WHEREAS, EnerNOC and the Parties anticipate that EnerNOC may provide, or make available for review, certain information considered by EnerNOC to be of a trade secret, privileged, or confidential nature (as defined in Idaho Code $ 9-340, et seq., and $ 48-801, et seq.). 4. WHEREAS, EnerNOC and the Parties agree that entering into a Protective Agreement will expedite the production of documents; will afford the necessary protection to EnerNOC'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 EnerNOC by stamping the same with a designation indicating its trade secret, proprietary, or confidential nature and printed on yellow 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. PROTECTIVE AGREEMENT BETWEEN EMRNOC, IDAHO POWER COMPANY, STAFF, & INTERVENORS - I 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-13-14 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 Aqreement. 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 certiff 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 fuIIname, permanent address, and employer. (e) Challense to Companv Denial of Access. Any disputes arising as a result of EnerNOC'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 and Exhibit A to this Protective Agreement. (b) Return of Conlidential Information. Upon request of EnerNOC, all original documents and copies of the Confidential PROTECTIVE AGREEMENT BETWEEN EMRNOC,IDAHO POWER COMPANY, STAFF, & INTERVENORS.2 Information shall be (1) returned to EnerNOC 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 EnerNOC 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 retum of documents pursuant to this paragraph, and upon request, a written receipt verifuing 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 EnerNOC, be either returned to EnerNOC or, at the option of the recipient, destroyed. 3. Non-waiver of Obiection to AdmissibiliW. The furnishing of any document, information, data, sfudy, 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. Challenee to Confidentialitv. (a) Initial Challenee. This Protective Agreement establishes a procedure for the expeditious handling of information EnerNOC claims is confidential. In any proceeding before the Commission, a Party may challenge the charucterization of any information, document, data, or study claimed by EnerNOC 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 EnerNOC and attempt to resolve any difference by stipulation. Resolution may include removing the confidential classifications, creating a non-confidential summary, reformatting the information, etc. (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 PROTECTIVE AGREEMENT BETWEEN ENERNOC,IDAHO POWER COMPANY, STAFF, & INTERVENORS.3 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) Challense Hearins. 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 EnerNOC 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 EnerNOC 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: (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 EnerNOC 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 PROTECTIVE AGREEMENT BETWEEN ENERNOC, IDAHO POWER COMPANY, STAFF, & INTERVENORS.4 reference to Confidential Information described in paragraph 5(a)(l) shall be placed in the sealed record. (3) Only one (l) 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 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) InCameraHearineandTranscriots. 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 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 ofthe sealed record has been designated by the appealing party as necessary to the record on appeal. PROTECTIVE AGREEMENT BETWEEN ENERNOC,IDAHO POWER COMPANY, STAFF, & INTERVENORS - 5 6. Destructionor 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 Pleadines. 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. Summarv of Record If deemed necessary by the Commission, EnerNOC shall prepare a written summary of the Confidential Information referred to in Orders to be issued to the public and the parties. 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. PROTECTIVE AGREEMENT BETWEEN ENERNOC, IDAHO POWER COMPANY, STAFF, & INTERVENORS - 6 DATED this f) da1, eliJuly 2013' ENERNOC, [NC. PROTECilV E AG REEMEN 1' B ETWEEN ENERNOC, IDAHO POWER COMPAN Y, STAFF, & INTERVENORS- 7 Attorney Representing EnerNOC, Inc, IDAHO POWER COMPANY Idaho Power Company l22l West Idaho Sfreet Boise, Idaho 83702 Attomey Representing Idaho Power Company PROTECTTVE AGREEMENT BETWEEN ENERNOC, IDAHO POWER COMPANY, STAFF, & INTERVENORS- 8 IDAHO PUBLIC UTILITIES COMMISSION STAFF Bv: lu 4 /b , Deputv Attornev GeneralIdfio ?ublic Utilities Commission 472 W est Washinston Street Boise,Idaho %74. Attomev Reoresentins Idaho Pirblii Utilitiestommission Staff PROTECTIVE AGREEMENT BETWEEN ENERNOC,IDAHO POWER COMPANY, STAFF, & INTERVENORS.9 ,fY IAuI'f DATED this _ of )v zot l. INDUSTRIAL CUSTOMERS OF IDAHO POWER Peter J. Richardson Attomey Representing Industrial Customers of Idaho Power PROTECTIVE AGREEMENT BETWEEN ENERNOC,IDAHO POWER COMPANY, STAFF, & INTERVENORS - IO DATED this _ of July 2013. By: IDAHO CONSERVATION LEAGUE Benjamin J. Otto Attorney Representing Idaho Conservation League PROTECTIVE AGREEMENT BETWEEN ENERNOC,IDAHO POWER COMPANY, STAFF, & INTERVENORS.II --iDATED this 5 z of JulY 2013. SNAKE RTVER ALLIANCE /1*-h--,"--- Ken Miller Clean Energy Program Director Representing Snake River Alliance PROTECTIYE AGREEMENT BETWEEN ENERNOC, IDAHO POWER COMPANY, STAFF, & INTERVENORS.12 DATED this _ of July 2013. rDAHO IRRIGATION PUMPERS ASSOCIATION, INC. Eric L. Olsen Attorney Representing Idaho Irrigation Pumpers Association, Inc. By: PROTECTIVE AGREEMENT BETWEEN ENERNOC, IDAHO POWER COMPANY, STAFF, & INTERVENORS- 13 EXHIBIT *4" I have reviewed the foregoing Protective Agreement (EnerNOC) dated July 30, 2013 in Case No. IPC-E-13-14 and agree to be bound by the terms and conditions of such Agreement. Kq.+a Randy Lobb t Idaho Public Iltilities Commission Employer or Firm 472 W. Washington Street. Boise.ID 83702 Business Address Commission Staff Party 8^z Date EXHIBIT "A" I have reviewed the foregoing Protective Agreement (EnerNOC) dated July 30,2013 in Case No. IPC-E-13-14 and agree to be bound by the terms and conditions of such Agreement. Idaho Public Utilities Commission Employer or Firm 472 W. Washington Street. Boise.ID 83702 Business Address Commission Staff ,#l"il- EXHIBIT "A'' I have reviewed the foregoing Protective Agreement (EnerNOC) dated July 30, 2Ol3 in Case No. IPC-E-13-14 and agree to be bound by the terms and conditions of such Agreement. tdaho Public Utilities Commission Employer or Firm 472 W. Washington Street. Boise.ID 83702 Business Address Commission Staff Party tl'1 /:l / ls Date EXHIBIT "A" I have reviewed the foregoing Protective Agreement (EnerNOC) dated July 30, 2013 in Case No. IPC-E-13-14 and agree to be bound by the terms and conditions of such Agreement. Idaho Public Utilities Commission Employer or Firm 472 W, Washineton Street. Boise. ID 83702 Business Address Commission Staff Party EXHIBIT "A' I have reviewed the foregoing Protective Agreement (EnerNOC) dated July 30, 2013 in Case No. IPC-E-13-14 and agree to be bound by the terms Employer or Firm 472 W. Washington Street. Boise.ID 83702 Business Address Commission Staff Party EXHIBIT A I have reviewed the foregoing Protective Agreement dated July 30,2013, in Case No. IPC- E-13-14 and agree to be bound by the terms and conditions of such Agreement. i u c,Qn^,^+ Printed Name-De 6r- ^Tun c*r- tA,+go, Employer or Firm IA"qo /[R.l Bone,* Business Address TCT? ,4"q. /. Zars DC{IBITA EXHIBIT A I have reviewed the foregoing Protective Agreement dated July 30,2013, in Case No. IPC- E-13-14 and agree to be bound by the terms and conditions of such Agreement. i.,= r \^.L**[F PrintedName [, I\. \' \\: !d t,, \\.r.,r,: u\*JV,___ (;,.'\- ^ t-;L-f.-\.- /.L[40.,\(-\-, )L\l,uni i' Employer or Firm Fcfu( Business Address '?c fu,t l?\ I N,;sc, iD j")7..) ,\{L,+ rt3i /13 EXHIBITA