20140325Protective Agreement PAC-Monsanto.pdf

PROTECTTVE AGREEMEI{T
BETWEEN
PACIT'ICORP DBA ROCI(Y MOI]NTAIN POWER
AND MONSAITTO COMPAIYY
This Protective Agreement is entered into ,*r[%^rof January ZOl4byPacifiCorp
dba Roclcy Mountain Powet ("Rocky Mountain Power") and Monsanto Company (Monsanto).
Recitals:
l. WHEREAS, PacifiCorp dba Rocky Mountain Power (Rocky Mountain Power)
desires to make available to Monsanto certain infonnation respecting Rocky Mountain Power's
Application for Authority to Increase Rates to Recover Defened Net Power Costs tlrough the
Energy Cost Adjustment Mechanism (Case No. PAC-E-14-01), and Monsanto desires to receive
/-'-/
such irfonnation.
2. WHEREAS, Rocky Mountain Power and Monsanto anticipate that PacifiCorp may
provide, or make available for review, certain information, considered by PacifiCorp to be of a
trade secret, privileged or confidential nafire (as defined n ldaho Code $ 9-340 et seq. and $ 48-
801 e, seqt.).
3. WIIEREAS, Rocky Mormtain Power and Monsanto agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary
protection to Rocky Mor:ntain Power's and Monsanto's 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 IIEREBY STIPTJLATED A}tD AGREED AS FOLLO\ilS:
1. (a) Conlidential Information
All documents, dat4 information, studies and other materials firnrished pr:rsuant to any
requests for information, subpoenas or other modes of discovery (fonnal or informal), &d
including depositions, that are claimed to be of trade secret, proprietary or confidential nature
Qrerein referred to as "Confidential Information') shall be so marked by the party or entity
PROTECTME AGREEMENT
providing the information by stamping the same with a designation indicating its trade secre!
proprietary or confidential nature and printed on yellow paper. Access to and review of
Confidential Information shall be stictly controlled by the terms of this Agreement.
(b) Use of Conlidential 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 pqpose other than the
purpose of preparation for and conduct of the proceedings, and then solely as contemplated
hereir, and shall kgep the Confidential Information secure as tade secret confidential or
proprietary information and 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. Such information will be clearly marked and protected from
unauthorized public disclosrue.
(d) Non-disclosure Aereement
Confidential Infomration 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 disclosr:re
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 cor:nsel for the providing party, before disclosure is made.
2. (a) Copies
No copies or transcriptions of the Confidential Information shall be made by ttre recipient
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
A11 original documents and copies of the Confidential lnformation shall be: (1) returned
to the providing parly or (2) shredded by the holder of such documents within thirty (30) days
after tle final settlement or conclusion of the proceedings, including administrative or judicial
review thereof. Counsel for the receiving party shall provide an affidavit to the providing parry
PROTECTME AGREEMENT
certifying that the information has been either returned or shredded within 60 days after the final
settlement or conclusion of the proceedings or administative or judicial review thereof.
Unless otherwise ordered, Confidential Information, including t'anscripts 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 thirfy (30) days after final settlement or
conclusion of the proceedings, including administrative or judicial review thereof.
(c) Return of Notes
Any notes maintained by a recipient of Confidential Inforrration 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.
3. Non-waiver of Obiection to Admissibilitv
The furnishing of any document, information, data" study or other materials prusuant 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 Cornmission.
4. Challenee to Confidentialitv
(a) Initial C.hallenee
This Protective Agreement establishes a procedtre for the expeditious handling of
information that a party claims is confidential. Any party may challenge the characterization of
any infomration, docurnent, data or study claimed by the providing parry to be a tade secret,
proprietary or confidential information. A party seeking to challenge the confidentialrty of any
information 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 sunmary, refonnatting the information, etc.
(b) SubsequentChallense
In the event that the parties cannot agree as to the character of the information
challenged, any party challenging the confidentiality may petition the Commission to rule upon
the disputed information. The Petition shall be served upon the Commission and all parties 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 Eeemed to be non-confidential by the challenging party.
PROTECTTVE AGREEMENT
(c) Challenge Hearins
The challengmg 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. This hearing shall be commenced no earlier
than five (5) business days after serving the Petition on the providing party and the Commission.
The record of the in camera hearing shall be marked "COII"f,IDENTIAL - Subject to
Protective Agreement." To the extent necessary, the hanscript 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 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 disclosrue
pursuant to the Idatro Public Records Act (Idaho Code $$ 9-335,9-337 et seq.). If information is
found to be not exempt from disclo$ue, no party shall 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 procedrue enables the restictions 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 the requesting 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 Agreement.
One (1) copy of the used Confidential Information or substantive reference
to Confidential lnforrration or substantive reference to Conlidential
Information described in paragraph 5(a)(l) shall be placed in the sealed
record.
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.
Q)
(3)
4PROTECTIVE AGREEMENT
(4) The copy of the docurtents to be placed in the sealed record shall be
tendered by counsel for the providing party Commission, and shall be
maintained in accordance with the terms of this Protective Agreement.
(b) Seal
While in the custody of the Cornmission, materials containing Confidential Information
shall be marked "COII-FIDENTIAL - Subject to Protective Agreement" and shall not be
exarnined by any person except under the conditions set forth in this Agreement if applicable.
(c) In Camera Hearins and Transcrints
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 Infonnation (or that portion of the record
containing Confidential Information) shall be marked and heated as provided herein for
Confi dential Infonnation.
(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 Comrnission 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 parly shatl be notified which
portion of the sealed record has been designated by the appealing pafiy as necessary to the record
on appeal.
6, Destruction lor Returnl
Unless otherwise ordered, Confidential lnformation provided pr:rsuant to a discovery
request and this Agreement including tanscripts of any discovery depositions to which a claim
PROTECTTVE AGREEMENT
of confidentiatity 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
providing party] within thirty (30) days after final settlement or conclusion of this matter,
including administrative or judicial review thereof. Cournsel for the receiving party shall provide
an affidavit to the providing party certifying that the information has been either retumed or
shredded within 60 days after the final settlement or conclusion of the proceedings or
administative 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 tifle or exhibit nr:mber or some other description that will not disclose the
substantive Confidential Information contained therein. fuiy use of or substantive references to
Confidential lnfonnation shall be placed in a separate section of the pleading or brief and
submitted to the Comrnission 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. Summarv of Record
If deemed necessary by the Commission, ttre providing parties shall prepare a written
sunmary of the Confidential Inforrration referred to in Orders to be issued to the public and the
parties.
9. Jurv Waiver
To the fullest extent permitted by law, each of the parties hereto waives any right it may
have to a trial by jury in respect of litigation directly or indirectly arising out of, under or in
connection with this agreement. Each party firrther waives any right to consolidate any action in
which a jury trial has been waived wittt any other action in which a jtrry trial cannot be or has not
been waived.
10. This Protective Agreement shall become effective on the date hereof.
PROTECTME AGREEMENT
DATED Et
7
I Sout h(ain StrEot, Suib 2300
SaltI*c City, Utah 84111
,or" 20+hdayofJanuary zal4.
PACIX'ICORP DBA ROCKT MOUNTAIN POWER
Attomey for RocJcy Mountain Power
Attomcy Represcotiag
Monsanto Company
Monrento Company
PROIBCTIVE AGREEMENT
E>ilIIBIT A
I have reviewed the foregoing Protective Agreement dated th"Z\*yof January 2014, and
agree to be bound by the tenns and conditions of such Agreement.
Business Address/
,et l*/ t'N
PROTECTTVE AGREEMENT
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated the _ day of January 2014, 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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PROTECTryE AGREEMENT
E>CIIBIT A
I have reviewed the foregoing Protective Agreement dated tAe llaay of January 2014, arrd
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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Party
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Date
PROTECTTVE AGREEMENT 8
EXHIBIT A
I lrave reviewed the foregolng Prctective Agrecment dated +Xrfdu1of Jarruary 2014, and
egree to be bound by the terms and conditions of such Agreement.
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Employer or Firm
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Business Address
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PROTECTIVE AGREEMENT 8
E)CIIBIT A
I have reviewed the foregoing Protective Agreement dated A"Tday of January 2014, and
agree to be bound by the terms and conditions of such Agreement.
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Employer or Firm
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Business Address
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Parfy
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PROTECTIVE AGREEMENT 8
E}CIIBIT A
dJL
I have reviewed the foregoing Protective Agreement dated the l? day of January 2014, and
agree to be bound by the tenns and conditions of such Agrcement.
fuC AJD
Name
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Employer or Firm
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Party
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Date
PROTECTIVE AGREEMENT
EXHIBIT A
I have reviewed the foregoing Protective Agreement datedtheZ( day of January 2014, and
agrce to be bound by the terms and conditions of such Agreement.
Employer or Firm
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Party
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PROTECTTVE AGREEMENT
E)trIIBIT A
I have reviewed the foregoing Protective Agreement dated the _ day of January 2014, allid
agree to be bound by the terms and conditions of such Agreement.
Slc*n Syr,^ne,r-
Name
{\, No*pro
Employer or Firm
N. t-rpD
Business Address
PROTECTTVE AGREEMENT