20110222Protective Agreement.pdf

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PROTECTIVE AGREEMENTBETWEEN ian FEB 22 Ali 9: 48
PACIFICORP DBA ROCKY MOUNTAIN POWER AND I",;"
IDAHO PUBLIC UTILITIES COMMISSION STAFFiJTlLW¡Ëb
Ths Protective Agreement is entered into ths 1 ~ t,&y of 1:~la1 by PacìfiCorp
dba Rocky Mountain Power and the Idaho Public Utilities Commission (Staff).
Recitals:
1. WHEREAS, PacifiCorp dba Rocky Mountan Power (Rocky Mountan Power) desires to
make available to the Staf certain information respecting Rocky Mountain Power's Application
requesting approval of amendments to the revised protocol allocation methodology (Case No. PAC-
E-IO-09), 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 PacifiCorp to be of a 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
Agreement wil expedite the production of documents; wil afford the necessar protection to Rocky
Mountain Power's and Staffs employees and/or representatives in ths proceeding who might review
the information and subsequently be requested to reveal its contents by setting fort 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 furshed 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, proprieta 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 yellow 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 specifc 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 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 purose other than the purose of preparation for and
conduct ofthe proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secret, confidential or proprietar information and in accordance with the
puroses and intent of this Agreement.
(c) Persons Entitled to Review
Access to Confdential 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 ths Agreement. Such information wil be clearly marked and protected from
unauthorized public disclosure.
(d) Non-disclosure Agreement
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 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 par, before disclosure is made.
2. (a) Copies
No copies or transcriptions of the Confidential Inormation shall be made by the recipient
except as necessar to make the information available to individuals who have executed an Exhibit A
to this Protective Agreement.
(b) Return of confidential Information
Upon final settlement or conclusion of the proceedings, including administrative or judicial
review thereof, all original documents and copies of the Confidential Information shall be: (1)
returned to the providing par or (2) shredded by the holder of such documents withn thirt (30)
days after the final settlement or conclusion of the proceedings, including administrative or judicial
review thereof.
PROTECTIVE AGREEMENT 2
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 pary within thirt (30) days afer 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 Confidential Inormation which embody or reflect any
of the Confdential Information provided under this Agreement shall, upon request of the providing
par, be either returned to the providing pary or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty
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 par to object to its
relevance or admissibilty 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 pary to be a trade secret, proprietar
or confidential information. A party seeking to challenge the confdentiality of any information shall
first contact counsel for the providing par and attempt to resolve any difference by stipulation.
Resolution may include removing the confidential classifications, creating a non-confidential
sumar, reformatting the information, etc.
(b) Subsequent Challenge
In the event that the paries canot agree as to the character of the information challenged,
any pary challenging the confdentiality 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-confdential by the challenging par.
PROTECTIVE AGREEMENT 3
(c) Challenge Hearing
The challenging par 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 pary and the Commission. The record of
the in camera hearing shall be marked CONFIDENTIAL - Subject to Protective Agreement. To
the extent necessar, the transcript of such hearing shall be separately bound, segregated, sealed, and
witheld 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.). If information is found to be not
exempt from disclosure, no pary shall disclose such challenged material or use it in the public
record, or otherwse outside the proceedings for at least five (5) business days unless the providing
pary 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 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 pary 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 Confdential Information
or substantive reference to Confidential Information only to the providing
par, and such other paries, if any, who have executed an Exhibit AA to
this Protective Agreement.
(2) One (l) copy of the used Confdential Information or substative reference to
Confidential Information or substantive reference to Confidential Inormation
described in paragraph 5(a)(l) shall be placed in the sealed record.
PROTECTIVE AGREEMENT 4
(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 par.
(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 Confdential 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 Hearing and Transcripts
Any Confidential Information that must be orally disclosed at a hearng 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.
(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 though agreement of the
paries or after notice to the parties and hearing, 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 taen, sealed portions of the record may be
forwarded to any cour of competent jurisdiction for puroses of an appeal, but under seal as
designated herein for the information and use of the cour. If a portion of the record is forwarded to a
cour 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 par as necessar to the record on appeaL.
6. Destruction (or Return)
Unless otherwise ordered, Confidential Information provided pursuat 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
PROTECTIVE AGREEMENT 5
requirements of this Agreement, and shall be destroyed (shall be retured to counsel for the
providing par) within thirty (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, arguents, 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 substantive
Confidential Inormation 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 fort in Exhibit AA=. attached to this Protective
Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
AA=..
8. Summary of Record
If deemed necessar by the Commission, the providing paries shall prepare a written
summar of the Confidential Information referred to in Orders to be issued to the public and the
paries.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT 6
J\r\''ADATED at Boise, Idaho this day of Februar 2011.
PACIFICORP DBA ROCKY MOUNTAIN 'POWER
By ~h1i~
Mark C. Moench
Daniel E. Solander
Rocky Mountan Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
Attorneys for Rocky Mountain Power
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By
cott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staf
PROTECTIVE AGREEMENT 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this jLl~~daYOf February 2011 in Case
No. PAC-E-1O-09 and agree to be bound by the tenns and conditions of such Agreement.
DQJ~. ei nce
Idaho Attorney General Office
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Idaho Public Utilties Commission Staff
Pary
;) /;; ~/ , IDate 7 '
EXHIBIT "Á"
I have reviewed the foregoing Protective Agreement dated this liday 0=2011 in Case No.
PAC-E-1O-09 and agree to be bound by the terms and conditions of such Agreement.
?~ch-
Randy Lobb
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StaffPar
I!?" /2011,Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this ~day Of~2011 in Case No.
PAC-E-IO-09 and agree to be bound by the terms and conditions of such Agreement.
j-V ~Ut
Terri Carlock
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
J)a 7 )aOll
Date
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated this -'day o~oi i in Case No.
PAC-E- i 0-09 and agree to be bound by the terms and conditions of such Agreement.
~~Matt Elam
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission StaffPar
~I /,21/11~ iDate