20150427Protective Agreement[PIIC].pdf

PROTECTIVE AGREEMENT
BETWEEN
PACIFICORP DBA ROCI(Y MOUNTAIN POWER AI\ID
PACIFIC IDAHO INDUSTRIAL CUSTOMERS
This Protective Agreement is entered into this _ day of March" 2015, by
PacifiCorp dba Rocky Mountain Power and Pacific Idaho Industrial Customers ("PUC").
Recitals:
l. WHEREAS, PacifiCorp dba Rocky Mor:ntain Power (Rocky Mountain Power)
desires to make available to PIIC 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 PIIC desires to receive such information.
2. WHEREAS, Rocky Mountain Power and PIIC 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 n ldaho Code $ 9-340 et seq. and g 48-
801 er seq.).
3. WIIEREAS, Rocky Mowrtain Power and PIIC agree that entering into a Protective
Agreement will expedite the production of documents; will afford the necessary protection to
Rocky Mountain 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 pararneters 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 furnished pursuant to any
requests for information, subpoenas or other modes of discovery (fonnal 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 conlidential nature and printed on "yellow" paper. Access to and review of
Confidential Information shall be stictly controlled by the terms of this Agreement.
PROTECTIVE AGREEMENT
ft) 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 purpose other than the
purpose of preparation for and conduct of the proceedings, and then solely as contemplated
herein, and shall keep the Confidential lnformation 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 "A" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosue.
(d) Non-disclosure Asreement
Confidential Information shall not be disclosed to any person who has not signed a non-
disclosue 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
discloswe 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 pdy, before disclosue is made.
2. (a) Copies
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 n'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 sefflement or conclusion of the
proceedings, including administative or judicial review thereof.
Unless othenuise ordered, Confidential Information, including transcripts of depositions
containing information to which a claim of confidentiality is made, shall remain under seal, shall
PROTECTTVE AGREEMENT
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
retumed 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 destnrction of documents pursuant to this paragraph, and upon request, a written receipt
veriffing the return or destruction shall be provided by counsel.
(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 o& at the option of the recipieng
destroyed.
3. Non-waiver of Obiection to Admissibilitv
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 Conlidentialitv
(a) Initial Challenee
This Protective Agreement establishes a procedtue 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 Eade secref
proprietary or confidential information. A party seeking to challenge the confidentiality of any
information shall first contact cotusel for the providing party and attempt to resolve any
difference by stipulation. Resolution may include removing the confidential classifications,
creating a non-confidential sunmary, reformatting the information, etc.
(b) Subsequent Challenqe
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 panies 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.
PROTECTIVE AGREEMENT
(c) Challense Heerinc
The shallenging 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 "CONI'IDENTIAL - Subject to
Protective Agreement." To the extent necessary, the tanscript of such hearing shall be
separately bound, segregated, sealed, and withheld from public inspection by any person not
bound by the tenns 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 othenrise 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 jurisdiction.
5. (a) Receipt Into Evidence
Provision is hereby made for receipt into evidence in this proceeding of materids 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 paffy, and such other parties, if any, who have executed an
Exhibit "A" to this Protective Agreement.
One (l) copy of the used Confidential lnformation 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 (l) copy of the documents designated to be placed in a sealed
record shall be made, which copy shall be supplied by the providing party.
(2)
(3)
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(4) 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.
(b) Seal
While in the custody of the Commission, materials containing Confidential Information
shall be marked "CONFIDENTIAL - SUB.IECT TO PROTECTM AGREEMENT" and
shall not be examined by any penion except under the conditions set forth in this Agreement, if
applicable.
(c) In Camere 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 tanscription of any
examination or other reference to Confidential Information (or that portion of the record
containing Confidential Information) shall be marked and Eeated as provided herein for
C onfidential 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) 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 party shall be notified which
portion ofthe sealed record has been designated by the appealing parry as necessary to the record
on appeal.
6. Destruction for Returnl
Unless othenvise ordered, Confidential Information provided pursuant to a discovery
request and this Agreement, including transcripts of any discovery depositions to which a claim
PROTECTIVE AGREEMENT
of confidentiality is made, shall remain under seal, shall continue to be subject to the protective
requirements of this Agreement, and shall be destoyed [shall be returned to counsel for the
providing partyl within thirty (30) days after final settlement or conclusion of this matter,
including administative or judicial review thereof.
7, Use in Pleadines
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 shdl
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 lnformation 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. Jun 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 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. Summarry 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
PACINCORP DBA ROCICY MOUNTNN POWER
Rocky Mountain Porver
201 South Main Street, Suite 2300
Salt Lake City, Utatr 841 I I
Attomeys for Rocky Mowrtain Power
PACIFIC IDAHO INDUSTRIAL CUSTOMERS
f,at
Ronald L. Williams
Williams Bradbury, P.C.
1015 W. Hays Street
Boise,ID 83702
Attomeys for PIIC
PROTECTTVE AGREEMENT