20050921Protective agreement.pdf

Lisa Nordstrom (ISB #5733)
ean Brockbank
PacifiCorp
825 N. E. Multnomah, Suite 1800
Portland, OR 97232
Telephone: [phone]
FAX: [phone]
ORI GiNAL
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Application of PacifiCorp
for the Approval of a Power Purchase Sale
Agreement for the Sale and Purchase of
Electric Energy Between PacifiCorp and
Schwendiman Wind LLC
Case No. PAC-O5-
PR OTEC TIVE AGREEMENT
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
(a)Confidential Information.
All documents, data, information, studies and other materials furnished pursuant
to any audit requests for information, subpoenas or other modes of discovery (formal or
informal), and including depositions , that are claimed in compliance with Commission
Rules of Procedures to be of a trade secret, proprietary or confidential nature (herein
referred to as " Confidential Information ) by the party or entity providing the
information by stamping the same with designation indicating its trade secret
proprietary or confidential nature and printed on "colored" paper. (Reference IDAPA
31.01.01.233 Assertions that discovered material is not available for public inspection).
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 disclosing party; or
(2) Is rightfully received from a third person having no direct or
indirect secrecy or confidentiality obligation to the disclosing party
with respect to such information; or
(3) 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
(4) Is approved for release by written authorization of the disclosing
party; or
(5) 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 disclosing party to
enable the disclosing party to seek protective orders.
(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 participation in this proceeding, and shall keep
the Confidential Information secure as a trade secret, confidential or proprietary
information and in accordance with the purposes and intent of this Agreement.
Protective Agreement-Exhibit A
(c)Persons Entitled to Review.
Access to confidential information shall be limited to members of the counsel of
the undersigned parties , employees , experts agents or representatives of the
undersigned parties who have executed an Exhibit" A" to this Agreement.
(d)Nondisclosure Agreement.
Confidential Information shall not be disclosed to any person who has not signed
a nondisclosure agreement. 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 certify in writing that he or she has reviewed the same and have
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.
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 or similar Protective Agreement executed in connection
with this matter. When copies are made , such copies will clearly reveal the
confidential markings.
Nonwaiver 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 in any proceedings before this
Commission.
Challen~e to Confidentialit~
(a)Initial Challen~
This Protective Agreement establishes a procedure for the expeditious handling
of information that a party claims is confidential. Should any party seek to challenge
the confidentiality of any information, they 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 nonconfidential summary ,
reformatting the information, etc.
(b)Subsequent Challen~
In the event that the parties cannot agree as to the character of the information
challenged, any party may petition the Commission to rule upon the disputed
Protective Agreement-
information. The Petition shall be served upon the Commission , all parties who have
signed a Protective Agreement to the case. 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)Challenge Hearin~
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 or a similar Protective Agreement executed in connection with this
matter 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. To
the extent necessary, the record of the in camera bearing shall be marked
CONFIDENTIAL - Subject to Protective Agreement dated ." 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 Commission shall issue an Order determining whether any challenged
information or materials 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 public disclosure, Staff or any party shall not disclose
such challenged material or use it in the public record 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 Commissioner 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.
(a)Receipt Into Evidence.
The following provisions shall govern the receipt into evidence of materials
claimed to be confidential.
(1)If Staff or other party bound by this Agreement intends to use
Confidential Information or to make substantive reference to
Confidential Information supplied to it under this agreement, they
shall give reasonable prior notice of such intention to the
providing party and shall provide copies of the used Confidential
Information only to the providing party and any other parties who
have executed an Exhibit A to this Protective Agreement.
Protective Agreement-
(2)
(3)
(b)
One (1) copy of the used Confidential Information or substantive
reference to Confidential Information described in paragraph
5(a)(1) shall be placed in the sealed record.
Except as otherwise provided by law , 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 offering party.
Confidential documents placed in the sealed record shall be
maintained in accordance with the terms of this Protective
Agreement.
Seal.
While in the custody of the Commission, materials containing Confidential
Information shall be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'
CERTIFICA TE 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 Transcri~
Any Confidential Information that must be orally disclosed at a subsequent
hearing shall be offered at an in camera hearing, attended only by persons authorized to
have access to the information under this or similar Protective Agreements executed in
connection with the subject information. 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)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 or similar
Protective Agreements , 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 fmal order of a court
having fmal jurisdiction.
(e)
Sealed portions of the record in this proceeding 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 of the sealed record has been designated by the appealing party as
necessary to the record on appeal.
Protective Agreement-
Use in Pleadin~
The following provides the terms under which Confidential Information shall be
treated in pleadings: Where references to Confidential Information in the sealed record
or with the 'custodian is required in pleadings, briefs, argument, 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 serviced only on counsel of
record who have signed the nondisclosure agreements set forth in Exhibit" A" attached
to this or other similar Protective Agreements , and may, in turn, be disclosed by them
only to individuals who have likewise signed Exhibit "
Summary of Record.
If deemed necessary by the Commission, the providing party shall prepare a
written summary of the Confidential Information referred to in the Decision and Order
to be issued to the public and the parties.
Return.
(a)Return of Confidential Information.
Upon request of the providing party, all original documents and copies of the
Confidential Information shall be destroyed by shredding or returned to the providing
party within thirty (30) days after the final settlement or conclusion of this matter.
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 the providing party within
thirty (30) days after fmal settlement or conclusion of this matter 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.
(b)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 the providing party, be either returned to the providing party or, at the
option of the recipient, destroyed by shredding.
This Protective Agreement shall become effective on the date hereof.
Protective Agreement-
'ih-
DATED at Boise, Idaho this ~day of September, 2005,
Idaho Commission Staff
1.1 !,i tf---
By: 'UI 1.A- i!.
By:
Schwendiman Wind LLC
By:
Protective Agreement-
DATED at Boise , Idaho this 0- day of September , 2005.
Idaho Commission Staff
By:
Pacificorp
By:
Protective Agreement-
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated q I 105 in this
proceeding and agree to be bound by the terms and conditions of such Agreement.
~~~
Residence Address
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Party
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Date
Protecti ve Agreement - 7
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EXHmIT
I have reviewed the foregoing Protective Agreement dated
qj/~
in this
proceeding and agree to be bound by the terms and conditions of such Agreement.
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Name
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Employer or Firm
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Business ,Address
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P arty
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Date
Protective Agreement- 7
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated in this
proceeding and agree to be bound by the tenns and conditions of such Agreement.
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Gil~-WO\C
Name ~ 1
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idenC ddress .u-u LO-C ~
Emplo~t:trQr Finn
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~siness Address
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Protective Agreement- 7
EXIllBIT "
I have reviewed the foregoing Protective Agreement dated :::ff/6/Uot;in this
proceeding and agree to be bound by the tenns and conditions of such Agreement.
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Name DeQh .Er~tI(ClI1
Residence Address
Pq(, 'f" CfJ
Employer or Finn
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Business Address
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Party
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Date
Protective Agreement- 7
EXHIBIT
I have reviewed the foregoing Protective Agreement dated
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in this
proceeding and agree to be bound by the terms and conditions of such Agreement.
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Residence Address
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Employer or Firm
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Business Address
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- Party
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Date
Protective Agreement- 7