20050808Protective Agreemen.pdf

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iI,PROTECTIVE AGREEMENT
BETWEEN r. .
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ACIFICORP dba UTAH POWER & LIGHT
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c' ." t ,' I;'MIDAMERICAN ENERGY HOLDINGS COMPANY AND:\iI0 t UbLrL .
THE IDAHO PUBLIC UTILITIES COMMISSION StAFptES COr1f'fllSS10h
This Protective Agreement is entered into this 25th day of July 2005 by PacifiCorp
dba Utah Power & Light Company, MidAmerican Energy Holdings Company, and the Idaho Public
Utilities Commission (Staff).
Recitals:
1. WHEREAS, PacifiCorp and MidAmerican (hereinafter "Applicants" or "providing
party") desire to make available to the Staff and other intervening parties certain information
regarding the Applicants' Joint Application for MidAmerican to acquire PacifiCorp (Case No. P AC-
OS-8).
2. WHEREAS, the Applicants anticipate that they may provide, or make available for
review, certain information, considered by the Applicants to be of a trade secret, privileged or
confidential nature (as defined in Idaho Code ~ 9-340 et seq. and 9 48-801 et seq.
3. WHEREAS, the Applicants, Staff and other undersigned parties agree that entering
into a Protective Agreement will expedite the production of documents; will afford the necessary
protection to the undersigned 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 the Applicants or party providing the information by stamping
the same with a designation indicating its trade secret, proprietary or confidential nature and printed
on "colored" 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
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
support the claim. IDAP A 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.
Unless otherwise agreed, the obligations of confidentiality and non-use set forth in this
Agreement do not apply to such Confidential Information that:
(1) Was, at the time of receipt, already known to the receiving party free of any
obligation to keep it confidential as evidenced by written records prepared prior
to delivery by the providing party; or
(2) Is or becomes publicly known through no wrongful act of the receiving party; or
(3) Is rightfully received from a third person having no direct or indirect secrecy or
confidentiality obligation to the providing party with respect to such
information; or
(4) Is independently developed by an employee, agent, or contractor of the receiving
party that is not involved in any manner with the provision of services pursuant
to this Agreement and does not have any direct or indirect access to the
Confidential Information; or
(5) Is approved for release by written authorization of the providing party; or
(6) Is required to be made public by the receiving party pursuant to applicable law
or regulation, provided that the receiving party shall give sufficient notice of the
requirement to the providing party to enable the providing party to seek
protective orders.
(b) Use of Confidential Information
All persons who may be entitled to review qr 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 the proceeding before the Commission and then solely as
contemplated herein, and shall keep the Confidential Information secure as trade secret, confidential
or proprietary information in accordance with the purposes and intent of this Agreement.
(c)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
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
Exhibit "A" to this Agreement. Confidential information will be clearly marked and protected from
unauthorized public disclosure.
(d)Nondisclosure Af!reement.
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 t~e 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 nondisclosure agreement
(Exhibit ") 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.
(e)Hif!hlv Confidential Documents.
In the case of documents or information designated by a party as highly confidential, the
providing party may decline to provide copies to counsel for other parties or to their employees
experts, agents or representatives. (The "highly confidential" designation is reserved for information
the dissemination of which imposes a highly significant risk of competitive harm to the disclosing
party without enhanced protections.) The providing party shall instead make such documents or
information available for inspection and review by parties ' representatives who have executed an
Exhibit "A" to this Protective Agreement at a place and time mutually agreed upon by the parties.
The individuals reviewing the highly confidential information may make limited notes regarding
such information for reference purposes only. Such notes shall not constitute a verbatim or
substantive transcript of the highly confidential information. For purposes hereof, notes made
pertaining to or as the result of a review of highly confidential information shall be considered
Confidential Information and subject to the terms of this Protective Agreement.
2. (a)Copies.
No copies or transcriptions of the Confidential Information shall be made by the recipient
party except as necessary to make the information available to individuals who have executed an
Exhibit "A" to this Protective Agreement.
PROTECTIVE AGREEMENT
P ACIFICORP , MID AMERICAN
AND IPUC STAFF
(b)Return of Confidential Information.
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) shredded by the holder of such
documents.
Unless otherwise ordered, Confidential Information, including 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 the providing party within thirty (30) days after final settlement or conclusion of the proceedings
including administrative or judicial review thereof. After return of documents pursuant to this
paragraph, and upon request, a written receipt verifying return shall be provided by counsel.
(c)Return of Notes.
Any notes maintained by a recipient party of Confidential Information which embody or
reflect any of the Confidential Information provided under this Agreement shall, upon request of the
providing party, be either returned to the providing party or, at the option of the recipient party,
destroyed by shredding.
3. Non-waiver of Objection to Admissibility.
The furnishing 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 ~n any proceedings before this Commission.
4. Challenf!e to Confidentiality
(a)Initial Challenf!e.
This Protective Agreement establishes a procedure for the expeditious handling of
information that the Applicants claim is confidential. In any proceeding before the Commission
Staff or Intervenor 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.
seeking to challenge the confidentiality of any information Staff or Intervenor 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.
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
(b)Subsequent Challenf!e.
In the event that the parties cannot agree as to the character of the information challenged
Staff or Intervenor may challenge the confidentiality of the information by petitioning the
Commission to rule upon the disputed information in any proceeding in which the information is
relevant. The Petition shall be served upon the Commission and all parties to the proceeding 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
materials are deemed to be non-confidential.
(c)Challenf!e Hearinf!.
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. ID AP A 31.01.01.243.01. This hearing shall be
commenced no earlier than five (5) business days after serving the Petition on the Commission and
all parties who have signed an Exhibit "" 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. IDAP A 31.01.01.287.
(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 999-337 et seq.Ifinformation is found to
be not exempt from disclosure, 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 the
providing party 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:
PROTECTIVE AGREEMENT
P ACIFICORP, MID AMERICAN
AND IPUC STAFF
(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 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
(2)
Agreement.
One (1) copy of the used Confidential Information or substantive reference to
Confidential Information described in paragraph S(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, which copy shall be supplied by the providing party.
The copy of the documents to be placed in the sealed record shall be tendered(4)
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 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 Hearinf! 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 Confidential Information (or that portion of the record containing
Confidential Information) shall be marked and treated as provided herein for Confidential
Information. See IDAP A 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, unless such
PROTECTIVE AGREEMENT
PACIFICORP, MIDAMERICAN
AND IPUC STAFF
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. Ifa 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 of
the sealed record has been designated by the appealing party as necessary to the record on appeal.
6. Use in Pleadinf!s.
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 S. 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
7. Summary of Record.
If deemed necessary by the Commission, the providing party shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
8. Effective Date.
This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
DATED at Boise, Idaho this Z5~day of July 2005.
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
. Van Nostrand
mes F. Fell
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2600
Portland, OR 97204
Attorneys for PacifCorp
MIDAMERCAN ENERGY HOLDINGS COMPANY
Senior Vice President- Law
MidAmerican Energy Holdings Company
2755 E. Cottonwood Parkway, Suite 300
Salt Lake City, UT 84171-0400
Attorney for MidAmerican Holdings Company
SION STAFF
Attorney for Idaho Public Utilities Commission Staff
EXHIBIT"
I have read the foregoing Protective Agreement dated July 25 , 2005 in Case No. P AC-05-8 and
agree to be bound by the tenns and conditions of such Agreement.
J~ ~ch
TERRI CARLOCK
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street
Business Address
Commission Staff
Party
~-~ -OS
Date
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
EXHIBIT"
I have read the foregoing Protective Agreement dated July 25, 2005 in Case No. P AC-05-8 and
agree to be bound by the terms and conditions of such Agreement.
J(;~
RANDY LOBB
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street
Business Address
Commission Staff
Party
giG/os;-
Date
PROTECTIVE AGREEMENT
P ACIFICORP , MIDAMERICAN
AND IPUC STAFF
EXHIBIT"
I have read the foregoing Protective Agreement dated July 25 , 2005 in Case No. P AC-05-8 and
agree to be bound by the terms and conditions of such Agreement.
(AI /Uut~~ (; C?
MARIL YN PARKER
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street
Business Address
Commission Staff
Party
s-t/~
Date
PROTECTIVE AGREEMENT
P ACIFICORP, MIDAMERICAN
AND IPUC STAFF
EXHIBIT"
I have read the foregoing Protective Agreement dated July 25, 2005 in Case No. P AC-05-8 and
agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street
Business Address
Commission Staff
Party
Au
Date 0
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PROTECTIVE AGREEMENT
PACIFICORP, MIDAMERICAN
AND IPUC STAFF
EXHIBIT
I have read the foregoing Protective Agreement dated July 25 , 2005 in Case No. P AC-05-8 and
agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
472 West Washington Street
Business Address
Commission Staff
Party
Of) 6 ~ J 6~
Date
PROTECTIVE AGREEMENT
P ACIFICORP , MIDAMERICAN
AND IPUC STAFF