20150427Protective Agreement [Monsanto].pdf

PROTECTIYE AGREEMENT
BETWEEN
PACIFICORP DBA ROCKY MOT'NTAIN POWER AND
MONSAI\TO COMPAI\TY
+^This Protective Agreernent is entered into this l3 'day ofMarch 2015 by PacifiCorp dba
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 regarding Rocky Mountain Power's
Application for Approval of the Transaction to Close the Deer Creek Mine and for a Deferred
Accounting Order (Case No. PAC-E-I4-10), and Monsanto desires to receive such infonnation.
2. WHEREAS, Rocky Mountain Power and Monsanto anticipate that PacifiCorp may
provide, ormake available forreview, certain information, consideredbyPacifiCorp tobeof atrade
secret, privileged or confidential nature (as defined in ldaho Code $ 9-340 et seq. and $ 48-801 er
seq.\.
3. WIIEREAS, Rocky Mountain Power and Monsanto agree that entering into a Protective
Agreernent will expedite the production ofdocuments; will afford the necessaryprotection to Rocky
Mountain Power's and Monsanto's employees and/or representatives in this proceeding who rnight
review the information and subsequently be requested to reveal its conteuts 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 docurnents, data, information, studies and other materials fumished 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, proprietary or confidential nature (herein referred
to as "Confidential Information") shall be so rnarked by the party or entity providing the information
by stamping the same with a designation indicating its trade secret, proprietary or confidential nature
and printed on "yellow" paper. Access to and review of Confidential Infonnation shall be strictly
controlled by the terms of this Agreement.
(b) Use of Confidential Information
PROTECTTVE AGREEMENT
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 lnformation
for purposes of business or competition, or any purpose other than the purpose ofpreparation for and
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Infonnation secure as trade secret, confidential or proprietary information and in accordance with the
purposes and intent of this Agreement.
(c) Persons Entitled to Review
Access to Confidential Infonnation shall be lirnited to counsel of the undersigned parties,
employees, experts, agents or representatives of the undersigned parties who have executed an
Exhibit "A" to this Agreernent. Such infonnation will be clearly marked and protected from
unauthorized public disclosure.
(d) Non-disclosureAsreement
Confidential Infonnation shall not be disclosed to any person who has not signed a non-
disclosure agreernent on this fonn, which is attached hereto as Exhibit "A" and incorporated herein.
The non-disclosure agreement or Exhibit "A" shall require the person to whorn disclosure is to be
made to read a copy of this Protective Agreement and to certiff in writing that he or she has
reviewed the sarne and has consented to be bound by its terms. The Agreement shall contain the
signatory's full name, permanent address and ernployer. Such agreernent shall be delivered to
counsel for the providing patry, before disclosure is rnade.
2. (a) Copies
No copies or transcriptions of the Confidential lnformation shall be rnade by the recipient
except as necessary to make the infonnation available to individuals who have executed an Exhibit
"A" to this Protective Agreement.
(b) Return of confidential Information
Upon request of the providing party, all original documents and copies of the Confidential
Infonnation shall be: (1) retumed to tlie providing party or (2) sluedded by the holder of such
documents within thirty (30) days after the final settlement or conclusion of the proceedings,
including administrative or judicial review thereof.
Unless otherwise ordered, Confidential Information, including transcripts of depositions
containing infonnation to wliich a clairn of confidentiality is made, shall remain under seal, shall
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
PROTECTIVE AGREEMENT
retumed to counsel for the providing party within thirty (30) days after final settlernent or conclusion
of the proceedings, including adrninistrative or judicial review thereof. After the return or
destruction of documents pursuant to this paragraph, and upon request, a written receipt verifying the
return or destruction shall be provided by counsel.
(c) Return of Notes
Ar:y notes maintained by a recipient of Confidential Information which ernbody or reflect any
of the Confidential lnfonnation provided under this Agreernent 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, infonnation, 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 adrnissibility in any proceedings before this Cornrnission.
4. Challenee to Confidentialitv
(a) Initial Challenee
This Protective Agreement establishes a procedure for the expeditious handling of
infonlation that a party clairns is confidential. Any party may challenge the characterization of any
information, document, data or study clairned by the providing party to be a trade secret, proprietary
or confidential information. A party seeking to challenge the confidentiality of any infonnation shall
first contact counsel for the providing party and atternpt to resolve any difference by stipulation.
Resolution rnay include removing the confidential classifications, creating a non-confidential
suuunary, refonnattiug the information, etc.
(b) SubsequentChallenee
In the event that the parties cannot agree as to the character of the infonnation challenged,
any party challenging the confidentiality may petition the Commission to rule upon the disputed
infonnation. The Petition shall be served upon the Commission and all parties to the case who liave
signed on Exhibit "A" as provided in this Protective Agreement. The Petition shall designate with
specificity the docurnent or rnaterial challenged and state the grounds upon which the subject
rnaterial are deemed to be non-confidential by the challenging party.
(c) Challense Hearins
The challenglng party shall request that the Commission conduct an in camera proceeding
wlrere only those persons duly authorized to have access to such challenged materials under this
PROTECTIVE AGREEMENT
Protective Agreement shall be present. This hearing shall be cornrnenced no earlier than five (5)
business days after serving the Petition on the providing party and the Comrnission. The record of
the in camera hearing shall be maTked "CONFIDENTIAL - Subject to Protective Agreement."
To the extent necessary, the transcript of such hearing shall be separatelybound, segregated, sealed,
and withheld frorn public inspection by any person not bound by the terms of this Agreement.
(d) Determination
The parties will ask the Cornrnission to issue an Order detennining whether any challenged
information or material is not properly deerned to be exempt frorn 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 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
pafty consents to such conduct. This procedure enables the restrictions of this Agreernent from
rnaterial claiined to be confidential. Such relief rnay be sought frorn the Comrnission or a court of
competent j urisdiction.
5. (a) Receipt Into Evidence
Provision is hereby rnade for receipt into evidence in this proceeding ofrnaterials clairned to
be confidential in the following manner:
(1) If the requesting party intends to use Confidential Infonnation or to make
substantive reference to Confidential Infonnation 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 Infonnation only to the providing
party, and such other parties, if any, who have executed an Exhibit "A" to this
Protective Agreement.
(2) One (l) copyof theused Confrdential lnformation or substantivereferenceto
Confidential lnformation or substantive reference to Confidential lnformation
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 party.(4) The copy of the documents to be placed in the sealed record shall be tendered
by counsel for the providing party Cornmission, and shall be rnaintained in
accordance with the terms of this Protective Agreement.
(b) Seal
PROTECTTVE AGREEMENT
Wrile in the custody ofthe Cornrnission, materials containing Confidential hifonnation shall
be rnarked "CONFIDENTIAL - SUBJECT TO PROTECTM AGREEMENT" and shall not be
examined by any person except under the conditions set forth in this Agreement, if applicable.
(c) In Camera lfearins and Transcripts
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 irave access to the
information under this Protective Agreernent. Similarly, any transcription of any examination or
other reference to Confidential Infonnation (or that portion of the record coutaining Confidential
lnformation) shall be rnarked and treated as provided herein for Confidential lnfonnation.
(d) Access to Record
Access to sealed testimony, records, and infonnation shall be lirnited to the Corunission and
persons who have signed an Exhibit "A" as provided in this Protective Agreement, unless such
infonnation is released frorn the restrictions of this Agreernent 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 frorn the proceeding be taken, sealed portions of the record rnay 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 courl. 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. Destruction [or Returnl
Unless otherwise ordered, Confidential Infonnation provided pursuant to a discoveryrequest
and this Agreement, including transcripts of any discovery depositions to which a claiur of
confidentiality is rnade, shall remain under seal, shall continue to be subject to the protective
requirements of this Agreernent, and shall be destroyed fshall be returned to counsel for the
providing parfyl within thirty (30) days after final settlement or conclusion of this matter, including
adrninistrative or judicial review thereof.
7, Use in Pleadinss
PROTECTIVE AGREEMENT
Where references to Confidential Lafonnation in the sealed record or with the custodian is
required in pleadings, briefs, arguments, or rnotions (except as provided in Paragraph 5), it shall be
by citation to title or exhibit number or sorne other description that will not disclose the substantive
Confidential Information contained therein. Any use of or substantive references to Confidential
Infonnation shall be placed in a separate section of the pleading or brief and submitted to the
Cornmission pursuant to Paragraph 5. This sealed section shall be serviced only on counsel ofrecord
who have signed the nondisclosure agreements set forth in Exhibit "A" attached to this Protective
Agreement, and may, in tum, be disclosed by them onlyto individuals who likewise signed Exhibit
rrA."
8. Jury Waiver
To the fullest extent pennitted 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 further waives any right to consolidate any action in which a jury
trial has been waived with any other action in which a jury trial cannot be or has not been waived.
9. Summarv of Record
If deerned necessary by the Commission, the providing parties shall prepare a written
surunary of the Confidential lnformation referred to in Orders to be issued to the public and the
parties.
10. This Protective Agreement shall become effective on the date hereof.
PROTECTTVE AGREEMENT
DATED at this _ day of Febnrary 2015.
PACIFTCORP DBA ROCI(Y MOT}NTAIN POWER
RoclcyMountain Power
201 South Mah Street, Suite 2300
Salttake City, Utah 841ll
Attoroeys for Rocky Mountain Power
Attorncy Representing
Monsanto
EXEIBIT ..^N'
7PROTECTIVE AGREEMENT
I have reviewed the foregoing Protective Agreement dated the 13- day ,fflWr&2015, in Case
No. PAC-E-14-10 and agree to b" h)|!y the temrs and conditions of such Agreement.tusG
Name
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Employer or Firrr
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Business Address
Party
PROTECTTVE AGREEMENT
EXHIBIT ..A''
I have revierved the foregoing Protective Agreement dated the _ day of February 2015, in Case
No. PAC-E-14-10 and agree to be bound by the terms and conditions of such Agreement.
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PROTECTIVE AGREEMENT 8
EXlrrBll $ar
I have reviewed the foregoiug Protective Agreement dated the _ day ofFebruary 2015, in Case
No. PAC-E-14-10 and agree to be bound by the terms and conditions of such Agreement.
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PROTECTIVE AGREEMENT
EXHIBIT "A"
I have rcvietved the foregoing Protective Agreement dated the _ day of February 2015, in Case
No. PAC-E-I4-10 and agree to be bound by the terms and conditions of such Agreement.
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PROTECTIVE AGREEMENT
44.
I lrave reviewed the foregoing Protective Agreement dated the V'duy of February 2015, in Case
No. PAC-E-14-10 and agree to be bor:nd by the temrs and conditious of such Agreement
eNgYzLy fu)q.fr-d I L€, ilt-L
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PROTECTTVE AGREEMENT