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HomeMy WebLinkAbout20210610Protective Agreement.pdfPROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AI\TD . i,' tJ;t lli lit4 fi: ti IDAIIO PUBLIC UTILITIES COMMISSION STAFF (AND OTIIER PARTIES AS APPLICABLE) CASE NO. IPC-E-21-09 .: t . l',_. r\ r.r ,,.q,r.ailL,utVlr This Protective Agreement is entered into this 24h day of May 2021, by ldaho Power Company ("Idaho Power") and the ldaho Public Utilities Commission Stafl and other parties as applicable. Recitals: l. WHEREAS, Idaho Power and the ldaho Public Utilities Commission 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 $$ 74-107 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-21-09 who might review the information and subsequently be requested to reveal its contents by sefting forth clear cut parameters for 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 AI\D AGREED AS FOLLOWS: 1. (a) Confidential Information 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 "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 31.01.01.233. IPC.E.2I.O9 _ PROTECTIVE AGREEMENT - I (b) Protection of Confidential Information Access to and review of Confidential Information shall be strictly controlled by the terms of this Agreement. 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 not be disclosed to individuals who have not executed 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 of this Agreement shall neitheruse nor disclose the Confidential lnformation 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 Review 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-disclosure Aereement 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 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 full name, permanent address and employer. Such agreement shall be delivered to counsel for the providing party, before disclosure is made. 2. Copies No copies or transcriptions of the Confidential Information shall be made by the recipient except as necessary to make the information available to individuals who have executed an Exhibit "A" to this Protective Agreement. IPC-E.2I.09 - PROTECTIVE AGREEMENT. 2 3. Non-waiver of Obiection 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. Challense to Confidentialitv (a) Initial Challenge This Protective Agreement establishes a procedure for the expeditious handling of information that a party claims is confidential. Any party may challenge the characterization of any information, document, data or study claimed by the providing pafi to be a trade secret, proprietary or confidential information. A party seeking to challenge the confidentiality of any information shall first contact counsel for the providing party 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 Challense In the event that the parties cannot agree as to the character of the information challenged, any party challenging the confidentiality may petition the Commission to rule upon the disputed information. The 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 deemed to be non-confidential by the challenging party. (c) Challenee Hearine The challenging party 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 the providing party 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 IPC-8.2I.09 _ PROTECTIVE AGREEMENT - 3 Idaho Public Records Act(ldaho Code $$ 74-l0l through 74-126). 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 proceedings for at least five (5) business 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) Receipt Into Evidence Provision is hereby made for receipt into evidence in this proceeding of materials claimed to be confidential in the following manner: (l) If the 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 (l) copy of the used Confidential Information or substantive reference to Confidential Information or substantive reference to Confidential Information described in paragraph 5(a)(l) shall be placed in the sealed record. (3) The copy of the documents to be placed in the sealed record shall be tendered by counsel for the providing parry 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) In Camera Hearins andTranscriots 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. IPC.E.2I.O9 _ PROTECTTVE AGREEMENT . 4 (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 finaljurisdiction. (e) Apoeal 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. 6. 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 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 .,Arr. 7. Summarv of Record If deemed necessary by the Commission, the providing parties shall prepare a written summary of the Confidential lnformation referred to in Orders to be issued to the public and the parties. E. Return or Destruction of Confidential Information (a) Upon request of the providing party, all original documents and copies of the Confidential Information shall be: (l) retumed to the providing party; or (2) or at the option of the recipient destroyed within thirry (30) days after the final settlement or conclusion of the proceedings, IPC.E-2I.09 _ PROTECTTVE AGREEMENT . 5 including administrative or judicial review thereof. After return or destruction of documents pursuant to this paragraph, and upon request, a written receip veriffing return 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 lnformation under seal. Notwithstanding any other provision in this Agreement, any member of Staffmay review and use that copy ofthe Confidential lnformation outside this proceeding while performing his or her duties as a Staffmember. Staffs use and disclosure ofthe Confidential Information in a laterCommission 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 ofthe Confidential Information provided under this Agreement shall, upon request ofthe providing party, be either returned to the providing party or, at the option ofthe recipient destroyed. ' 9. Effective Date This Protective Agreement shall become effective on the date hereof. lt u il il t/ t/ il il IPC-8.2I.09 _ PROTECTTVE AGREEMENT. 6 DATED this 24h day of May 2021. IDAHO POWER COMPAT{Y Mzdd!4.. By: Donovan Walker Idaho PowcrCompany l22l Wcst Iddro Stncct Boiso,Idaho t3702 Attomcy Rcprcscnting ldaho Power Company II}AIIO PTIBLIC UTILITIES COlIil}flSSION STATT' By:l%ffi,/rA MattHunGr Idaho Public Utilitics Commission ll33l W. Chfudcn Boulcvard Buitding 8, Suite 201-A Boise,Idaho 83714 Attorncy Rcprcscnting thc Idatro Public Utilitics Commission Staff pc-F.21!09 - PROIECTTVE ACnEEXUENT - 7 EXHIBIT'A" I have teviewed the foregoing Protective Agreement dated May 24.2A21, in Carse No, IPC-E-21-09 and agnec to he bound by the terms and conditions of such Agreement Yin Public Utilities eom,mission Employer or Firm I1331 W. Chinden Blvd., Building 8, Suite 201-A Boise- Idaho 83714 Business Address Contmission Staff Party S'27 .z,,.Ll Date EXHIBIT "A'' EXHIBIT "A" I have reviewed the foregoing Protective Agreement dated May 24,2021, in Case No. IPC-E-21-09 and agree to be bound by the terms and conditions of such Agreement. Keyt Public Utilities Commission Employer or Firm I l33l W. Chinden Blvd., Building SSuite 201-A Boise Idaho R7714 Business Address Commission Staff Party Date EXHIBIT *A"