HomeMy WebLinkAbout20150720PIIC Protective Agreement.pdfPROTECTIVE AGREEMENT
BETWEEN
PACIFICORP DBA ROCKY MOUNTAIN POWER
AND
PACIFICORP IDAHO INDUSTRIAL CUSTOMERS
This Protective Agreement is entered into ,nirl[fr"auy of July 2015 by
dba Rocky Mountain Power ("Rocky Mountain Power") and PacifiCorp Idaho
Customers ("PIIC").
PacifiCorp
Industrial
Recitals:
l. WHEREAS, Rocky Mountain Power desires to make available to PIIC certain
information respecting the Application of Rocky Mountain Power to Modify the Energy Cost
Adjustment Mechanism and Increase Rates by $10.2 Million, or Approximately 3.9 Percent
(Case No. PAC-E-15-09), and PIIC desires to receive such information.
2. WHEREAS, Rocky Mountain Power and PIIC anticipate that Rocky Mountain
Power may provide, or make available for review, certain information, considered by Rocky
Mountain Power 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 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 PIIC'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 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 (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 parry 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.
PROTECTIVE AGREEMENT
(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 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 A to this Agreement. Such information will be clearly marked and protected
from unauthorized public disclosure.
(d) Non-disclosure Asreement
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 party, before disclosure 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 A to this Protective Agreement.
(b) Return of Confidential Information
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. Counsel for the receiving party shall provide an affidavit to the
providing party certifying that the information has been either returned or shredded within 60
days after the final settlement or conclusion of the proceedings or administrative or judicial
review thereof.
PROTECTIVE AGREEMENT
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 party within thirty (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 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 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. Challense to Confidentiality
(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 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 summary, reformatting the information, etc.
(b) Subsequent Challenee
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.
PROTECTIVE AGREEMENT
(c) Challenee Hearine
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 marked "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 ldaho 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 jurisdiction.
5. (a) Receipt-lnto Evidence
Provision is hereby made for receipt into evidence in this proceeding of materials
claimed to 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 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.
(2) One (l) copy of the used Confidential Information or substantive reference
to Confidential Information or substantive reference to Confidential
Information described in paragraph 5(aXl) 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.
(3)
PROTECTIVE AGREEMENT
(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 - 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 Hearing 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
Confi dential 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 finaljurisdiction.
(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 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
PROTECTIVE AGREEMENT
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. Counsel for the receiving party shall provide
an affidavit to the providing party certiffing that the information has been either returned or
shredded within 60 days after the final settlement or conclusion of the proceedings or
administrative 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 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 pursuantto 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, 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.
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 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.
10. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT
t)A'l'El) (his l(rtt' dav of Jul1" 2015.
P.\CIFICORP DBA ROCKY iIIOUNTT\lN POWER
Attorncy flor Rocky Mountain Porvcr
PACIFTCORP IDAHO INDUSTRIAL CUSTOMEITS
Yonne Il. I'log
ocky fulountain Porver
I South Main Street. Suite 2400
Salt l-ake City. Utah 841 I I
PRO]"I:C'f I V l": AOt{l:lii\'l IiN'f
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated the l? day of July 2015, and agree to
be bound by the terms and conditions of such Agreement.
S eup - E me co "t€oEmployer or Firm
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PROTECTIVE AGREEMENT