20090327Protective Agreement.pdf

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BETWEEN 2009 Mi'R 27 PM 2: 24
PACIFICORP DBA ROCKY MOUNTAIN POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAlf¡
This Protective Agreement is entered into this. 25th day of March 2009 by PacifiCorp
dba Rocky Mountain Power and the Idaho Public Utilities Commission (Staff.
Recitals:
1. WHEREAS, PacifiCorp dba Rocky Mountain Power (Rocky Mountan Power) desires to
make available to the Staff certain information respecting Rocky Mountain Power's Application
requesting approval of an energy cost adjustment mechanism (Case No. PAC-E-08-08), and Staff
desires to receive such information.
2. WHEREAS, Rocky Mountain Power and Staff anticipate that PacifiCorp may provide,
or make available for review, certain information, considered by PacifiCorpto be ofa trade secret, .
privileged or confidential nature (as defined in Idaho Code § 9-340 et seq. and § 48-801 et seq.).
3. WHEREAS, Rocky Mountain Power and Staff agree that entering into a Protective
Agreementwil expedite the production of documents; wil afford the necessar protection to Rocky
Mountain Power's and Staffs 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 Confdential Information which
might be provided hereafter,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
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1. (a) Confidential Information.
All documents, data, information, studies and other materials fuished 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, proprietar or confidential nature (herein referred
to as "Confidential Information") shall be so marked by the par or entity providing the information
by stamping the same with a designation indicating its trade secret, proprieta 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 31.01.01.233. Access to and review of Confidential
Information shall be strictly controlled by the terms of this Agreement.
PROTECTIVE AGREEMENT 1
(b) Use of Confidential Information
All persons whó may be entitled to review, or who are afforded access to any Confdential
Information by reason of this Agreement shall nèither use nor disclose the Confidential Information
for puroses of business or competition, or any purpose other than the purose of preparation for and
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secret, confdential or proprietar information and in accordance with the
puroses and intent of this Agreement.
(c) Persons Entitled to Review.
Access to Confidential Information shall be limited to counsel of the undersigned paries,
employees, experts, agents or representatives of the undersigned paries who have executed an
Exhibit "A" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosure.
(d) Nondisclosure Agreement.
Confidential Information shall not be disclosed to any person who has not signed a
nondisclosure àgreement 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 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. (a) Copies.
No copies or transcriptions of the Confidential Information shall be made by the recipient
except as necessar to make the information available to individuals who have executed an Exhbit
"A" to this Protective Agreement.
(b) Return. of Confidential Information.
Upon request of the providing par, all original documents and copies of the Confidential
Information shall be: (l) returned to the providing par or (2) shredded by the holder of such
documents within thirt (30) days afer the final settlement or conclusion of the proceedings,
including administrative or judicial review thereof.
Unless otherwise ordered, Confidential Information, including transcripts or depositions
containing information to which a claim of confidentiality is made, shall remain under seal, shall
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PROTECTIVE AGREEMENT 2
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
retured to counsel for the providing part within thirt (30) days after final settlement or conclusion
of the proceedings, including administrative or judicial review thereof. After retur 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 of Confdential Information which embody or reflect any
of the Confidential Information provided under this Agreement shall, upon request of the providing
par, -be either retured to the providing par or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty.
The fuishing of any document, information, data, study or othèr materials pursuant to this
Protective Agreement shall in no way limit or waive the right of the providing par to object to its
relevance or admissibility in any proceedings before this Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information that a par claims is confidentiaL. Any par may challenge the characterization of any
information, document, data or study claimed by the providing par to be a trade secret, proprieta
or confidential information. A par seeking to challenge the confidentiality of any information shall
first contact counsel for the providing part and attempt to resolve any differencè by stipulation.
Resolution may include removing the confidential classifications, creating a non-confidential
summar, reformatting the information, etc.
(b) Subsequent Challenge.
In the event that the paries canot agree as to the character of the information challenged,
any par challenging the confidentiality may petition the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all paries to the case who have
signed on 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 par.
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PROTECTIVE AGREEMENT 3
(c) Challenge Hearing.
The challenging par. shall request that the Commission conduct an in camera proceeding
where nnly 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 par and the Commission. The record of
the in camera hearing shall be marked "CONFIDENTIAL -- Subject to Protective Agreement."
To the extentnecessar, 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 paries wil 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 §§ 9-335, 9-337 et seq.). Ifinformation is found to be not
exempt from disclosure, no par shall disclose such challenged material or use it in the public
record, or otherwise outside the proceedings for at least five (5) business days uness the providing
par consents to such conduct. This procedure enables the restrctions of this Agreement from
material claimed to be confidentiaL. Such relief may be sought from the Commission or a cour 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 maner:
(1) If the requesting part 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
pary and shall provide copies of the used Confidential Information or substative
reference to Confidential Information only to the providing par, and such other
paries, if any, who have executed an Exhibit "A" to this Protective Agreement.
(2) One (1) copy ofthe used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confdential Information
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described in paragraph 5(a)(l) 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 part.
PROTECTIVE AGREEMENT 4
(4) . The copy of the documents to be placed in the sealed record shall be
tendered by counsel for the providing par 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 Inormation 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.
Any Confdential Information that must be orally disclosed at a hearing in the proceedings
shall be offered at an in camera hearng, 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) 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
paries or after notice to the paries and hearng, pursuant to the order of the Commission and/or the
final order of a cour 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 puroses of an appeal, but under seal as
designated herein for the information and use of the cour. Ifa portion ofthe record is forWarded to a
court under seal for the purposes of an appeal, the providing par shall be notified which portion of
the sealed record has been designated by the appealing party as necessar to the record on appeaL.
6. Destruction (or Return).
Unless otherwise ordered, Confidential Information provided pursuant to a discovery request
and this Agreement, including transcripts of any discovery depositions 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 be destroyed (shall be returned to counsel for the
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PROTECTIVE AGREEMENT 5
providing par) within thirt (30) days after final settlement or conclusion of this matter, including
administrative or judicial review thereof.
7. 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 wil not disclose the substative
Confidential Information contained therein. Any use of or substative 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 Protective
Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
"A".;
8. Summary of Record.
If deemed necessar by the Commission, the providing paries shall prepare a wrtten
sumar of the Confidential Information referred to in Orders to be issued to the public and the
parties.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT 6
DATED at Boise, Idaho ths 25th day of March 2009.
PACIFICORP DBA ROCKY MOUNTAIN POWER
BY~~~
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 841 1 1
Attorney for Rocky Mountain Power
IDAHO PUBLIC UTILITIES COMMISSION STAFF j
By
Sco t D. Woodbur
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilties Commission Staff
PROTECTIVE AGREEMENT 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 25, 2009 in Case No.
PAC-E-08-09 and agree to be bound by the terms and conditions of such Agreement.
J2MÀ GiaLocl
Terr Carlock
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
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Commission StaffPar
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Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 25, 2009 in Case No.
P AC-E-08-08 and agree to be bound by the terms and conditions of such Agreement.
Keith Hessing
Idaho Public Utilities Commission
Employer or Firm
j
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
Date
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EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 25, 2009 in Case No.
PAC-E-08-08 and agree to be bound by the terms and conditions of such Agreement.
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Rady LObf!
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
*
Commission Staff
Pary
3/zC;(dý
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Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 25, 2009 in Case No.
PAC-E-08-08 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
,
472 W. Washington Street, Boise, ID 83702
Business Address
i
Commission StafPar
b;bs l1
Date .' 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated March 25, 2009 in Case No.
PAC-E-08-08 and agree to be bound by the terms and conditions of such Agreement.
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Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
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Commission Staff
Pary
3/;j-i 1£91
Date