20150203Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN
PACIFICORP DBA ROCKY MOUNTAIN POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
This Protective Agreement is entered into ttrislnlaay of Febru ary20l5by PacifiCorp
dba Rocky Mountain Power and Idaho Public Utilities Commission Staff ("Staff').
Recitals:
l. WHEREAS, PacifiCorp dba Rocky Mountain Power (Rocky Mountain Power)
desires to make available to Staff certain information 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-14-10), 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 ldaho Code $ 9-340 et seq. and $ 48-801 et seq.).
3. WHEREAS, Rocky Mountain Power and Staff agree that entering into a Protective
Agreement will expedite the production of documents; will afford the necessary protection to Rocky
Mountain Power's and Staffls 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:
l. (a) Confidential Information
All documents, 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 marked 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 Information shall be strictly
controlled by the terms of this Agreement.
(b) Use of Confidential Information
PROTECTIVE 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 Information
for purposes of business or competition, or any purpose other than the purpose of preparation for and
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information 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 Information shall be limited to counsel of the undersigned parties,
employees, experts, agents or representatives of the undersigned parties who have executed an
Exhibit ooA" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosure.
(d) Non-disclosureAsreement
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'oA" shall require the person to whom 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 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) Conies
No copies or transcriptions of the Confidential Information shall be made by the 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
Upon request of the providing party, all original documents and copies of the Confidential
Information shall be: (l) returned to the providing party or (2) shredded 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 information to which a claim of confidentiality is made, shall remain under seal, shall
PROTECTIVE AGREEMENT
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 the return or
destruction of documents pursuant to this paragraph, and upon request, a written receipt verifting the
return or destruction shall be provided by counsel.
On a case-by-case basis and upon notification to the utility, the Commission Staff may retain
one copy of the Confidential Information under seal. Notwithstanding any other provision in this
Agreement, any member of Staff may review and use that copy of the Confidential Information
outside this proceeding while performing his or her duties as a Staff member. Staff s use and
disclosure of the Confidential Information in a later Commission proceeding shall be subject to any
protective agreement signed in the proceeding.
(c) Return of Notes
Any notes maintained by a recipient of Confidential Information 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 Admissibilifv
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 party to object to its
relevance or admissibility in any proceedings before this Commission.
4, Challenee to Confidentialitv
(a) Initial Challenee
This Protective Agreement establishes a procedure for the expeditious handling of
information that a party claims is confidential. Any party 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. A party seeking to challenge the confidentiality ofany 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
summary, reformatting the information, etc.
(b) SubsequentChallenee
PROTECTIVE AGREEMENT
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 deemed to be non-confidential by the challenging party.
(c) Challenee Hearins
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. 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 maTked "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 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 disclosure pursuant to the
Idaho Public Records Act (ldaho 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
party 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 j urisdiction.
5. (a) Receint Into Evidence
Provision is hereby made forreceipt into evidence in this proceeding of materials claimedto
be confidential in the following manner:
(l) 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 ofthe used Confidential Information
or substantive reference to Confidential Information only to the providing
PROTECTIVE AGREEMENT
(2)
party, and such other parties, if any, who have executed an Exhibit "A" to this
Protective Agreement.
One (l) copy of the used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential 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 parry.
The copy of the documents 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.
(3)
(4)
(b) Seal
While in the custody of the Commission, materials containing Confidential Information shall
be marked "CONFIDENTIAL - SUBJECT TO PROTECTIVE AGREEMENT" and shall not be
examined by any person except under the conditions set forth in this Agreement, if applicable.
(c) In Camera Hearins 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 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
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) Anpeal
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
PROTECTIVE AGREEMENT
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 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
providing party] within thirty (30) days after final settlement or conclusion of this matter, including
administrative or judicial review thereof.
7. Use in Pleadinss
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 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
rrA."
8. Jury Waiver
To the fullest extent permitted by law, each of the parties hereto waives any right it may have
to a trial by ju.y 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. Summary of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
10. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT
DArED ", E \..^-t1 tr,ir}&uv of February 20rs.--------cr-
PACIFICORP DBA ROCKY MOUNTAIN POWER
By
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
Attomeys for Rocky Mountain Power
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Deputy Attorney General
Idaho Public Utilities Commission
Boise,lD 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT
DATED" FfT3 *d*orrehuuy2ors.
PACTEICORP DBA R(rcKY MOIINIAIN POUIER
"noo$lrtounmn Poutr
201 Sodh l,Iah Stsoc[, Sdtg Zl00
S.lt I.ab Ctty, Iftah 841 1 1
AfmcF fu Roct, Morffir Po*rr
IDAEO PI'BLIC UIILrIIES COMMISSION SAf,T
Dspr$yAfiaosy GEocsal
IdahD Prflfo LltilifoB Cmtrdm
Boiss ID lli}?m
At@rynryomng
Idaho Pttbllc Ufilitils Cmisrio Sffi
PROTECTTVB AGREEMENT
EXHIBIT "A'
I have reviewed the foregoing Protective Agreement dated the _2_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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Name /
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Business Address
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Party
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Date
Employer or Firm
PROTECTIVE AGREEMENT
I have reviewed the foregoing Protective Agreement dated ,n"}ihurof February 2[l5,in Case
No. PAC-E-14-10 and agree to be bound by the terms and conditions of such Agreement.
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Name Terri Carlock
Idaho Public Utilities Commission
Employer or Firm
PO Box 83720. Boise.ID 8370-0074
Business Address
IPUC Staff
Party
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/a )rc,is
Date
PROTECTIVE AGREEMENT
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated ,n"ffOurof February 2[ls,in Case
No. PAC-E-14-10 and agree to be bound by the terms and conditions of such Agreement.
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Name Pn te-tc, a t'\ n Rl'{ E
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Employer or Firm
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Business Address
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Party
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PROTECTIVE AGREEMENT
I have reviewed the foregoing Protective Agreement dated the 2 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
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated tfre ffaay of February l2ills,in Case
No. PAC-E-14-10 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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Party
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Date
PROTECTTVE AGREEMENT
EXHIBIT "A"
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I have reviewed 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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Employer or Firm
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Business Address
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Party
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PROTECTIVE AGREEMENT