20181219Protective Agreement.pdf

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PROTECTIVE AGREEMENT
BETWEEN PACIFICORP DBA ROCKY MOUNTAIN POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
(aND OTHER PARTTES AS APPLTCABLE)
IN CASE NO. PAC.E.IE.O8
il i,-i l9 trili 9: l3
This Protective Agreement is entered into this 6l6iy "fHffi"ffPacifiCorp dba
Rocky Mountain Power ("Rocky Mountain Power" or "Company'') and the Idaho Public Utilities
Commission ("Staff'), and other parties as applicable.
Recitals:
!. WHEREAS, Rocky Mountain Power and Staff anticipate that parties to this proceeding
may make requests to provide, or make available for review, certain information, considered by its
custodian to be of a trade secret, privileged or confidential nature (hereinafter "Confidential
lnformation") as defined in ldaln Code $$ 74-lO7 through 74-lO9 and 48-801.
2. WHEREAS, Rocky Mountain Powcr and the undersigned parties agree that entering into
a Protective Agreement will expedite the production of documents; will afford the necessary
protection to the Company's and the undersigned parties' employees and/or representatives in the
2018 Depreciation Case who might review the information and subsequently be requested to reveal
its contents by setting forth clear cut parameters for use of Conf,rdential [nformation, and will protect
Confidential Information which might be provided during the course of the 2018 Depreciation Case,
now therefore,
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 "Confidential lnformation" 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. IDAPA 31.01.01.067.02. If in
electronic form, the Confidential lnformation shall be reproduced separately on a CD-ROM or other
approved storage device and clearly marked as Confidential Information. ld. A claim of
confidentiality must be accompanied by an attorney's certificate that the material is protected by law
PROTECTTVE AGREEMENT I
from public disclosure and cite the specific legal authority to support the claim. See Rules 67.03 and
233; IDAPA 3 1.01.0 1.067.03 and .233.
(b) Prgte-ction of Confidential Information
Access to and review of Confidential Information shall be strictly controlled by the terms of
this Agreement. Unless otherwise ordered, Confidential lnformation, 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 not be
disclosed to individuals who have not executed the nondisclosure agreement set forth in Exhibit "A."
IDAPA 3 1.01.0 t .067,03-,04, .287.
(c) 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 Conlidential lnformation
for purposes of business or competition, or any purpose other than the purpose of preparation for and
conduct of the 2018 Depreciation Case, and then solely as contemplated herein, and shall keep the
Confidential lnformation secure as trade secret, confidential or proprietary information and in
accsrdance with the purposes and intent of this Agreement.
{d) Persons Entitled to Review
Access to Confidential lnformation shall be limited to counsel of the undersigned parties,
employees, experts, agents or representatives of the undersigned parties rvho have executed an
Exhibit "A" to this Agreement. Such information will be clearly marked and protected from
uniluthorized publ ic disclosure.
(e) Non-disclosure Aqreement
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 lhe providing party, before disclosure is made.
PROTECTIVE ACREEMENT 2
2, 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.
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 the 2018 Depreciation Case before this Commission.
4. Challenee to Conlidentialitv
(a) Initial Challense
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
orconfidentialinformation. Apartyseekingtochallengetheconhdentialityofanyinformationshall
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. IDAPA 31.01.01 .M7.O4.
(b) SubseoueJlt 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 parties to the 2018
Depreciation Case who have signed an 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) Challense Hearine
The challenging party shall request that the Commission conduct an tn cantera 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
lhe in camera hearing shall be marked "CONtr'IDENTIAL - Subject to Protective Agreement."
3PROTECTTVE AGREEMENT
To thc cxtent [ecessary, 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. See
Rule 287, IDAPA 31.01.01.287,
(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 $$ 74-l0l through 74-126\. [f information is found tobe not
exempt lrom disclosure, no party shatl disclose such challenged material or use it in the public
record, or otherwise outside the proceedings for at least five (5) business days untess the providing
party consents to such conduct. This procedure enables the providing party to seek relief and to
separate non-exempt material from that found to be confidential. Such relief may be sought from the
Commission or a court of competent jurisdiction.
5. (a) Receiot Into Evidence
Provision is hereby made for receipt into evidence in the 2018 Depreciation Case of muterials
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
Agreernent, 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 partie$, if any, who have executed an Exhibit "A" to this
Protective Agreement.
(2) One ( I ) copy of the used Conlidential Information or.substantive reference to
Confidential lnformation or substantive reference to Confidential lnformation
described in paragraph 5(aXl) shall be placed in the sealed record.
(3) The copy of the documents to be placed in the sealed record shall be tendered
by counsel for the providing party to the Commission, and shall be
maintained in accordance with the terms of this Protective Agreement.
4PROTECTIVE ACREEMENT
(b) Eeel
While in the custodyof the Commission, materials containing Confidential lnformation shall
be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
forth in this Agreement, if applicable.
(c) fn Camero HeFrine and Transcriots
Any Confidential [nformation that must be orally disclosed at a hearing in the 2018
Depreciation Case shall be offered at an in canrcra hearing, attended only by persons authorized to
have access to the information under this Protective Agreement. Rule 243, IDAPA 3 1.01.01.243.
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 lnformation. Rule 287, TDAPA 3 L01.01 .287.
(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 andlor 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. See Idaho Court Administrative Rules
32(SX I ), ( l5), and (i). 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. 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
5PROTECTTVE ACREEMENT
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 served only on counsel of record
who have signed the nondisclosure agreement.s set forth in Exhibit "A" attached to this Protcctive
Agreement, and may, in turn, be disclosed by thcm only to individuals who likewise signed Exhibit
*Arr.
7. Summarv of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential Information reflerred to in Orders to be issued to the public and the
parties.
8, Return or Destruction of Conlidential Information
(a) Upon request of the providing party, all original documents and copie.s of the
Confidential Information shall be: (l) returned to the providing pafly; or (2) at the option of the
recipient destroyed within thirty (30) days after the final settlement orconclusion of the proceedings,
including administrative or judicial review thereof. After return or destruction af documents
pursuant to this paragraph, and upon request, a written receipt verifying return or destruction shall be
provided by counsel.
(b) On a case-by-case basis and upon notification to Rocky Mountain Power, the
CommissionStaffmayretainonecopyoftheConfidentiallnformationunderseal. Notwithstanding
any other provision in this Agreement, any member of Staff may review and use thilt copy of the
Confidential Information outside this proceeding while performing his or her duties as a Staff
member by signing an Exhibit A. Staff .s u.se and disclosure of the Confidential lnformation in a
later Commission proceeding shall be subject to any protective agreement signed in the subsequent
proceeding.
(c) Any notes maintained try a recipient of Confidential Information which embody or
reflect any of the Confidential Inforrnation provided under this Agreement shall, upon request of the
providing pa(y, be either returned to the providing party or, at the option of the recipienl, destroyed.
9, Effective Date
This Protective Agreement shall become effective on the date hereof.
10. Jury Waiver
To the fullest extent permitted by law, each of the parties hereto waives any right it may have
6PROTECTTVE ACREEMENT
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 rvaives 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.
7PROTECTTVE AGREEMENT
DATED this _ day ol November, 201 8.
ROCKY IVIOUNTA]N POWER
Yvonne R. Hogle
Assistant Cenerul Counsel
1407 West North Temple, Suite 320
Salr Lake City, Utah 841l6
Attomeys Representing
Rocky Mountain Power
IDAHO PUBLIC UTILITTES COMMISSION STAFF
Edwurd Ke[ell
Depu ty at,ih'.y General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staff
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IPROTECTTVE AGREEMENT
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IIATED this 6', day of Dte+ernrba, 20I 8.
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ROCKY MOI'NTAIN ROWER
R. Hope
General Counsel
West Nonh Tempte, Suite 3?0
hkcCitn Uldr 84116
Attomeys Reprcscnting
RockyMountnin Powr
IDAHO PUBLTC UTILITIES COMM ISSION STAFF
Ed-"rura{q$l
Dcputy Auohty Gcncral
Idolro Publtc Utilities Comrnission
472 tVest Woshington Sreet
Boisc,lD 83702
Auomey Representing
Idaho Publh Urilirics Commission Staff
8PROTECTTVE AOREEMENT
EXHIBIT ..A"
I have revierved the foregoing Protective Agreement dated It
PAC-E- l 8-08 and agree to be bound by the terms and conditions of such Agreement.
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IPROTECTTVE AGREEMENT
EXHIBIT ..A''
I have revierved the foregoing Protective Agreement dated lL il t(in Case No.
PAC-E- 18-08 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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IPROTECTTVE ACREEMENT
EXI.IIBIT "A"
I have revierved the foregoing Protective Agreement dated il
PAC-E- I 8-08 and agree to be bound by thc terms and conditions of such Agreemenl
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9PROTECTIVE ACREEMENT
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EXHIBIT "A''
I have revierved the foregoing Protective Agree ment daled lA
PAC-E-18-0E and agrce to be bound by the terms and conditions of such Agreement.
in Case No.
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Name
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Employer or Firm
Business Address
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9PROTECTIVE ACREEMENT
EXHIBIT *A"
I have reviewed the foregoing Protective Agreemcnt dated December 6, 2018, in Case
No. PAC-E-18-08 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
Commission Staff
Party
r*/ef N
Date
PROTECTIVE AGREEIVI ENT
472 W. Washington Street. Boise. ID 83702-5918
Business Address
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated December 6,2018, in Case
No. PAC-E-I8-08 and agree to be bouad by the terms and conditions of such Agreement.
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Terri Carlock
Idaho Puhlic I ltilities ommlsslon
Employer or Firm
. 472 W. Washineton Street. Bo.ise. ID 83702-5918
Business Address
Commission Staff
Party
taj te !a0 i8
Date
PROTECTIVE AGREEMENT
EXHIBIT ..A''
I have reviewed the foregoing Protective Agreement dated December 6,2018, in Case
No. PAC-E- I 8-08 and agree to be bound by the terms and conditions of such Agreement.
5),? U.*D 0n
Idaho Public Utilities ssion
Employer or Firm
472W. Washington Street. Boise, ID 83702-5918
Business Address
Commission Staff
Party
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Date
PROTECTIVE AGREEMENT