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HomeMy WebLinkAbout20190905Protective Agreement.pdfldaho Public Utilities Commission Office of lhe Secretarv HECEIVED SEP S - 2019 Boise,ldahoPROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF (AND OTHER PARTIES AS APPLTCABLE) CASE NO.IPC.E-I9.I1 This Protective Agreement is entered into this 7th day of August 2019 by Idaho Power Company ("ldaho Power") and the Idaho Public Utilities Commission (Staff), and other parties as applicable. Recitals: l. WHEREAS, Idaho Power and the Idaho Public Utilities Commission Staff (hereinafter "Staff') anticipate that parties to this proceeding may make requests to provide, or make available for review, certain information, considered by its custodian to be of a trade secret, privileged or confidential nature (as defined in ldaho Code $$ 74-rc7 through 74-109 and 48-801). 2. WHEREAS, Idaho Power and the undersigned 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 undersigned parties' employees and/or representatives in Case No. IPC-E- 1 9- 1 7 who might review the information and subsequently be requested to reveal its contents by setting forth clear cut parameters fbr use of Confidential Information, and will protect Confidential Information which might be provided during the course of the proceedings, now therefore, IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS: 1. (a) Confidential Inf.o.fmstio$ All documents, data, information, studies and other materials furnished pursuant to any requests for information, subpoenas or other modes of discovery (formal or informal), and including depositions, that are claimed to be of trade secret, proprietary or confidential nature (herein referred to as "Confidential Information") shall be so marked by the party or entity providing the information by stamping the same with a designation indicating its trade secret, proprietary or confidential nature and printed on o'yellow" paper. IDAPA 31.01.01.067. 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 3 1.01.01.233. IPC.E-I9-I7 - PROTECTIVE AGREEMENT I (b) Protection of Confidential Information Access to and review of Confidential lnformation shall be strictly controlled by the terms of this Agreement. Unless otherwise ordered, Confidential Information, including hanscripts 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 not bc disclosed to individuals who havc not cxecuted the nondisclosure agreement set forth in Exhibit "A." (c) Use of Confidential Information All persons who may be entitled to review, or who are afforded access to any Confidential Information by reason olthis 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 the proceedings, 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. (d) Persons Entitled to Ilevicw 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. (e) Non-disclosurc Asreemcnt Confidential Information shall not be disclosed to any person who has not signed a non- disclosure agreement on this form, which is attached hereto as Exhibit "A" and incorporated herein. The non-disclosure 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 certifu in writing that he or she has reviewed the same and has consented to be bound by its terms. fhe Agreement shall contain the signatory's full name, permanent address and employer. Such agreement shall be delivered to counsel for the providing party, before disclosure is made. 2. Conies No copies or transcriptions of the Confidential Information shall be made by the recipient cxcept as necessary to make the information available to individuals who have executed an Exhibit "A" to this Protective Agreement. IPC.E.I9.I7 - PROTECTIVE AGREEMENT 2 3. Non-waiver of Ohicction to Admissibilitv The fumishing 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. Challenee to Confidcntialitv (a) Initial Chatlcnge This Protective Agreement establishes a procedure for the expeditious handling of information that a party claims is confidcntial. Any party may challenge the characterization of any information, document, data or study claimed by the providing party to be a trade secret, proprietary or confidential information. A party seeking to challenge the confidcntiality of any information shall first contact counsel for the providing party and attempt to resolve any difference by stipulation. Rcsolution may include removing the confidential classihcations, creating a non-confidential summary, reformatting the information, etc. (b) SubseouentChallcnec In the event that the parties cannot agree as to the character of the information challenged, any party challcnging the confidentiality may petition the Commission to rule upon the disputed information. Thc Petition shall be served upon the Commission and all parties to the case who have signed an 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 dccmed to be non-confidential by the challenging party. (c) Challenee Hearine The challenging party shall request that the Commission conduct an in cameru 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 the providing party and the Commission. 'i'he record of the in camera hearing shall be maTked "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. IPC-E.19.I7 _ PROTECTIVE AGREEMENT - 3 (d) Detcrmination 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 (ldaho Code $$ 7 4-101 through 7 4-126). If information is found to be not exempt from disclosure, no party shall disclose such challenged material or use it in the public record, or otherwise outside the procecdings for at least five (5) busincss days unless the providing party consents to such conduct. This procedure enables the restrictions of this Agreement from material claimed to be confidential. Such relief may be sought from the Commission or a court of competent j urisdiction. 5. (a) Reccint Into f,videncc Provision is hereby made for receipt into evidence in this proceeding of materials claimed to be confidential in the following manner: (1) If thc requesting 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 the providing party 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 reflerence to Confidential Information or substantive reference to Confidential Information described in paragraph 5(a)(1) shall be placed in the sealed record. (3) The copy of the documents to bc placed in the sealed record shall be tcndered by counsel for the providing party to the Commission, and shall be maintained in accordance with the terms of this Protective Agreement. (b) Seal While in the custody ofthe Commission, materials containing Confidential Information shall be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIFICATE OF CONFIDENTIALITY" and shall not be examincd by any person except under the conditions set forth in this Agreement, if applicable. IPC-E-I9.I7 - PROTEC'I'IVE AGRSEMENI'- 4 (c) In Carzerc Hearing and Transcripts Any Confidential Information that must be orally disclosed at a hearing in the proceedings shall bc offered at an in cameru 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. (d) Acccss to Record Access to sealed testimony, records, and infbrmation 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 ths parties or after notice to the pa(ies and hearing. pursuant to the order of the Commission and/or the final order of a court having final jurisdiction. (e) Aoneal Should an appeal from the procecding 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. [f a portion ofthe 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. 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 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 nondisclosure 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,. IPC-E-19-17 "- PROTECTIVTI AGREEMENT - 5 7. Summar"v of Rccord If deemed necessary by the Commission, the providing parties shall prepare a written summary of the Confidential Information referred to in Orders to be issued to the public and the parties. 8. Return or l)estruction of Confidential Information (a) Upon request of the providing party, all original documents and copies of the Confidential Information shall be: (1) returned to the providing party; or (2) or at the option of the recipient destroyed within thirty (30) days after the final settlement or conclusion of the proceedings, including administrative or judicial review thereof. After return or destruction of documents pursuant to this paragraph, and upon request, a written receipt verifuing retum or destruction shall be provided by counsel. (b) On a case-by-case basis and upon notification to the utility, the Commission Staff may retain one copy of the Confidential Information under seal. Notwithstanding any other provision in this Agreement, any member of Staff may review and use that copy of the Confidential Information outside this proceeding while performing his or her duties as a Staff member. Staff s use and disclosure of the Confidential Information in a later Commission proceeding shall be subject to any protective agreement signed in the proceeding. (c) 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 ofthe providing party, be either returned to the providing party or, at the option of the recipient, destroyed. 9. Effective Date '[his Protective Agreement shall become effective on the date hereof. IPC-E-I9-I7 PROTECTIVE AGREEMENT _ 6 DATED this 7th day of August 2019. IDAHO POWER COMPANV By:,Xr;O fl-/-/n.,,., l-isa 6. Noidstro; ( Idaho Power Company 1221 West Idaho Street Boise,Idaho 83702 Attomey Representing Idaho Power Company IDAHO PUBLIC UTILITIES COMMISSION STAFF By Dayn Hardie Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise,Idaho 83702 Attomey Representing the Idaho Public Utilities Commission Staff IPC.E-19-I7 - PRO'I'EC]-IVE AGREEMENT _ 7 DATED this 7rh day of August 2019. IDAHO POWER COMPAIIY By: Lisa , Nordstrom Idaho Power Company 1221 West ldaho Sreet Boise,ldaho 83702 Attorney Representing ldaho Power Company IDAHO PUBLIC UTTLITIES COMMISSION STAFF By Dayn Hardie Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise, tdaho 83702 Attomey Representing the Idaho Public Utilities Commission Staff IPC.E.I9.I7 _ PROTECTIVE ACREEMENT * 7 EXHIBIT "A'' I have revierved the foregoing Protective Agreement dated August 7t',2019, in Case No. IPC-E-19-17 and agree to be bound by the terrns and conditions ofsuch Agreenrent. Rick Employer or Firm 472 W . Washincton Street. Boise. ID 83702 Business Address Commission Staff Partv '7 Date 1 $EXHlBIT "A'' Public Utilities Commission EXHIBIT "A" I have reviewed the foregoing Protective Agreemcnt dated August 7rh, 2019, in Case No. IPC-E-19-17 and agree to be bound by the terms and conditions of such Agreement. Public Utilities Cornmission Employer or Firm 472 W . Washinston Street. Boise. ID 83702 Business Address Commission Staff Party q 7 lrl Date IEXHIBIT "A'' EXHIBIT "A', I have reviewed the foregoing Protective Agrecment dated August 7$,2019, in Case No.IPC-E-19-17 and agree to be bound by the terms and conditions of such Agreernent. Curtis Thaden Public Utilitie.s Commission Employer or Firm 472W. Washinston Street, Boise. lD 83702 Business Address Commission Staff Party ,.6 - lI- g,o{1 Date IEXH[BIT "A'' EXHII}IT "A'' I have revieu,ed the foregoing Protective Agreement dated August 7rr', 201 9, in Case No. IPC-E- 19- I 7 and agree to be bound by the terms and conditions of such Agreement. Bentley Erdwurm Public Utilities Commission Employer or Firm 472 W-Washinston Street, Borse, ID 83702 Business Address Commission Staff Party rf rtf n Date IEXI.IIBIT "A"