20060626Protective agreement.pdf

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PROTECTIVE AGREEMENT
AMONG
ACIFICORP dba ROCKY MOUNTAIN POWER
MONSANTO COMPANY, THE IDAHO PUBLIC UTILITIES COMMISSION STAF:f,
THE IDAHO IRRIGATION PUMPERS ASSOCIATION , INc. AND NU.WESt ,
INDUSTRIES, INc.
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This Protective Agreement is entered into this 9th day of June , 2006 by and among
PacifiCorp dba Rocky Mountain Power, Monsanto Company, the Idaho Public Utilities Commission
Staff'), the Idaho Irrigation Pumpers Association, Inc. ("lIP A") and Nu- West Industries, Inc. ("Nu-
West"
Recitals:
1. WHEREAS, Rocky Mountain Power, Monsanto, lIP A and Nu- West anticipate that
they may 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 Idaho Code 9 9-340 et seq. and 9
48-801 et seq.
2. WHEREAS, Rocky Mountain Power, Monsanto , lIP A, Nu- West and Staff 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
support the claim. 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.
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, IIPA AND IPUC STAFF
(b)Use of Confidential Information
All persons who may be entitled to review, or who are afforded access to any
Confidential Information by reason ofthis 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
Exhibit "A" to this Agreement. Other parties desiring to access Confidential Information may do
after the Commission grants intervention to such party (an "Intervenor ) and after executing an
Exhibit "A" to this Agreement. Confidential information will be clearly marked and protected from
unauthorized public disclosure.
(d)Nondisclosure Agreement.
Confidential Infonnation 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 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)Highly 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.
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, lIP A AND IPUC STAFF
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 ofthe 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.
(b)Return of Confidential Information.
Upon request ofthe providing party, all original documents and copies ofthe 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 ofthe 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 ofthe providing party to object to
its relevance or admissibility in any proceedings before this Commission.
4. Challenge to Confidentiality
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, IIPA AND IPUC STAFF
(a)Initial Challem!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.
(b)Subsequent Challenge.
In the event that the parties cannot agree as to the character ofthe 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)Challenge Hearing.
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. IDAPA 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 "A." 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 ofthis Agreement. IDAPA 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 99 9-337 et seq.If information is found to
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, lIP A AND IPUC STAFF
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:
(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 5(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.
(4)The copy of the documents to be placed in the sealed record shall be tendered
by counsel for the providing party to the Commission, and shall be maintained
in accordance with the terms of this Protective Agreement.
While in the custody of the Commission, materials containing Confidential Information
(b) Seal.
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 Hearing and Transcripts.
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU- WEST, lIP A AND IPUC STAFF
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 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
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 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 ofrecord
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.
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, lIP A AND IPUC STAFF
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.
DATED at Boise, Idaho this 9th day of June, 2006.
PacifiCorp dba Rocky Mountain Powel"
Mark Moench
Sr. Vice President & General Counsel
201 South Main, Suite 2300
Salt Lake City, UT 84111
Attorney for PacifiCorp dba Rocky Mountain Power
Monsanto Com pan)'
J~ fL. Randall C. Budge
Racine, Olson, Nye, Budge & Bailey, Chartered
201 E. Center
PO Box 1391
Pocatello, ID 83204-1391
Attorneys for Monsanto Company
IDAHO PUBLIC UTILITIES COMJ\lISSION STAFF
~W ~ l1J;r~Ji;-~/l~Scott D. Woodbury (
Deputy Attorney General
Idaho Public Utilities Commission
::""
472 West Washington Street
Boise, lD 83702
Attorney for Idaho Public Utilities Commission Staff
PR OTECTIVE AGREEMENT
ROCKY MOUNT AlN PO\VER, MONSANTO,
NU-\VEST, lIP A AND IPUC STAFF
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 shaH become effective on the date hereof.
DATED at Boise, Idaho this 9th day ofJlIne, 2006.
acifiCorp dba Rocky Mountain Power
By /1(~
CU/
. Mark Moench
Sr. Vice President & General Counsel
201 South Main, Suite 2300
Salt Lake City, UT 84111
Attol11ey for PacifiCorp dba Rocky Mountain Power
Monsanto Company
Randall C. Budge
Racine, Olson, Nye, Budge & Bailey, Chartered
201 E. Center
PO Box 1391
Pocatello, ill 83204-1391
Attorneys for Monsanto Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Scott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washin/:,rton Street
Boise, ill 83702
Attorney for Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, lIP A AND IPUC STAFF
Con E. Ward
Give. Pursley LLP
601 W. Bannock
Boise, ill 83706
Attorneys for Nu-West Industries, Inc.
Idaho Irrigation Pumpers Association, Inc.
Eric Olsen
Racine, Olson, Nye, Budge & Bailey, Chartered
201 E. Center
PO Box 1391
Pocatello , ill 83204-1391
Attorneys for the Idaho Irrigation Pumpers Association , Inc.
PROTECTIVE AGREEMENT
ROCKY MOUNT AlN POWER, MONSANTO,
NU-WEST, IIPA AND IPUC STAFF
Nu-\Vest Industries, Inc.
Tim Buller
Electrical Engineer
20 I E. Center
PO Box 1391
Pocatello, lD 83204-1391
Attorneys for Monsanto Company
)c Olsen
Racine, Olson, Nye, Budge & Bailey, Chmiered
201 E. Center
POBox 1391
Pocatello, lD 83204-1391
Attorneys for the Idaho Irrigation Pumpers Association, Inc.
PROTECTIVE AGREEMENT
ROCKY MOUNT AlN POWER, MONSANTO
NU-WEST, lIP A AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 6th
P AC-06-o,!and agree to be bound by the terms and conditions of such Agreement.
2006 in Case No.
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Jim Smit~:.
Monsanto Company
O. Box 816
Soda Springs, Idaho 83276
Party
Date
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PROTECTIVE AGREEMENT
ROCKY MOUNT AlN PO\VER, MONSANTO
AND IPUC STAFF
EXHIBIT A
1 have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. P AC-06-
agree to be bound by the tenns and conditions of such Agreement.
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PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, IIPA AND JPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. P AC--a4and
agree to be bound by the terms and conditions of such Agreement.
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PROTECTlVE AGREEMENT
. ROCKY MOUNTAIN POWER, MONSANTO
NU-\VEST, IIPA AND IPUC STAFF
EXHIBIT A
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PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, IIPA AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9111, 2006 in Case No. P AC-06-Qjand
agree to be bound by the tenDS and conditions of such Agreement.
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PROTECTIVE AGREEMENT
ROCKY MOUNTAIN PO\VER, MONSANTO
NU-WEST, IIPA AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. P AC-06-qj and
agree to be bound by the terms and conditions of such Agreement.
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PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NlJ- WEST, TIP A AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. P AC-,f"f and
agree to be bound by the tenns and conditions of s cl1
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PROTECTIVE AGREEIvlENT
ROCKY MOUNTAIN POWER, MONSANTO
NO-WEST, IIPA AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. P AC-06~ and
agree to be bound by the tenns and conditions of such Agreement.
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PROTECTIVE AGREEMENT
ROCKY MOUNT AlN POWER, MONSANTO
NU-WEST, IIPA AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. P AC-06-~ and
agree to be bound by the terms and cond itions of such Agreement.
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PROTECTIVE AGREEMENT
ROCKY MOUNT AlN POWER, MONSANTO
NU-WEST, IIPA AND IPUC STAFF
EXHIBIT A
I have read the foregoing Protective Agreement dated June 9th, 2006 in Case No. PAC-06~and
agree to be bound by the terms and conditions of such Agreement.
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PROTECTIVE AGREEMENT
ROCKY MOUNTAIN POWER, MONSANTO
NU-WEST, lIP A AND IPUC STAFF