20191114Protective Agreement.pdf

PROTECTIVE AGREEMENT
BETWEEN PACIFICORP DBA ROCKY MOUNTAIN POWER AN
IDAHO PUBLIC UTILITIES COMMISSION STAFF
IN CASE NO. PAC-E-19-08
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RE:EIVED
lOY ltr Pl{ tr: 28
This Protective Agreement is entered into this lday of October, 2019 by PacifiCorp dba
Rocky Mountain Power ("Rocky Mountain Power" or "Company'') and the Idaho Public Utilities
Commission ("Staff'), and other parties as applicable.
Recitals:
1. 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
Information") as defined in ldaho Code $$ 74-107 through 74-109 and 48-801.
2. WHEREAS, Rocky Mountain Power 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 Case
No. PAC-E-19-08, In the Matter of the Application of Roclcy Mountain Power to Close the Net
Metering Program to New Service and Implement a Net Billing Program to Compehsote Customer
Generators for Exported Energt, (the "Net Billing case") 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 during
the course ofthe Net Billing case, now therefore,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1.(a)Confidential Information
All documents, data, information, studies and other materials fumished pursuant to any
requests for information, subpoenas or other modes ofdiscovery (formal or informal), and including
depositions, that are claimed to be "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. IDAPA 31.01.01.067.02. If in
electronic form, the Confidential lnformation shall be reproduced separalely on a CD-ROM or other
approved storage device and clearly marked as Confidential Information. Id. A claim of
confidentiality must be accompanied by an attorney's certificate that the material is protected by law
PROTECTIVE AGREEMENT
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I
from public disclosure and cite the specific legal authority to support the claim. See Rules 67.03 and
233; IDAPA 3 1.01.01.067.03 and .233.
(b)Pro tion of Confidential Information
Access to and review ofConfidential Information shall be strictly controlled by the terms of
this 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 ofthis Agreement, and shall not be
disclosed to individuals who have not executed tle nondisclosure agreement set forth in Exhibil "A."
IDAPA 31.01.01 .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 ofthis Agreement shall neither use nor disclose the Confidential Information
for purposes ofbusiness or competition, or any purpose other than the purpose ofpreparation for and
conduct of the Net Billing case, and then solely as contemplated herein, and shall keep the
Confidential Information secure as trade secret, confidential or proprietary inlormation and in
accordance with the purposes and intent of this Agreement.
(d) Persons Entitled to Review
Access to Confidential Information shall be limited to counsel ofthe 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 prolected from
unauthorized public disclosure.
(e) 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 "A" shall require the person to whom disclosure is to be
made to read a copy of this Protective Agreement and to certifu in writing that he or she has
reviewed the same and has consented to be bound by its terms. The Agreemenl shall contain the
signatory's full name, permanenl address and employer. Such agreement shall be delivered to
counsel for the providing party, before disclosure is made.
PROTECTIVE AGREEMENT 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 Obi ection to Admissibilitv
The fumishing 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 Net Billing case before this Commission.
4. Challenee to onfidentialitr
(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 ofany
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. IDAPA 31.01.01.067.04.
(h)Subsequent Challense
ln the event that th'e parties cannol agree as to the character ofthe information challenged,
any parq, 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 Net Billing
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) Challenee Hearins
The challenging party shall request that the Commission condtct 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."
3PROTECTIVE ACRTEMENT
To the extent necessary, the transcript ofsuch 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 Rec ords Act (ldaho Code $ $ 74- l0l tbrorghT4-126). Ifinformation 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 providing parfy 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.
s. (")Receirt Into Evidence
Provision is hereby made for receipt into evidence in the Net Billing case of materials
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 ofthe used Confidential Information
or substantive reference to Confidential Information only to the providing
party, and such other parties, ifany, who have executed an Exhibit "A" to this
Protective Agreement.
(2) One (1) copy ofthe used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential Information
described in paragraph 5(a)(1) shall be placed in the sealed record.
(3) The copy ofthe 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.
PRO'|ECTIVE AGREEMENT 1
(b) Seal
While in the custody of the Commission, materials containing Confidential Information 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) 1z Carzera Hearins and Transcripts
Any Confidential Information that must be orally disclosed at a hearing in the Net Billing
case shall be offeredatan in camera hearing, attended only by persons authorized to have access to
the information under this Protective Agreement. Rule 243, IDAPA3l.0l.0l.243. Similarly, any
transcription ofany examination or other reference to Confidential Information (or that po(ion ofthe
record containing Confidential Information) shall be marked and treated as provided herein for
Confidential Information. Rule 287, IDAPA 31.01.01.287.
(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 ofthe Commission and/or the
final order of a court having final jurisdiction.
(e) Anneal
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(gXl), (15), and(i). Ifa portion ofthe record is forwarded to a cou( 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 Pleadinss
Where references to Confrdential 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 ofor substantive references to Confidential
5PROTECl'IVE AGREEMENT
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 served 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 only to individuals who likewise signed Exhibit
7. 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.
8. Return or Destruction of Confidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Information shall be: (l) retumed to the providing party; or (2) at the option of the
recipient destroyed within thirty (30) days after the final settlement or conclusion ofthe proceedings,
including administrative or judicial review thereof. After retum or destruction of documents
pursuant to this paragraph, and upon request. a written receipt veriffing retum or destruction shall be
provided by counsel.
(b) On a case-by-case basis and upon notification to Rocky Mountain Power, the
Commission Staffmay 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 by signing an Exhibit A. Staffs use and disclosure of the Confidential Information in a
later Commission proceeding shall be subject to any protective agreement signed in the subsequenl
proceeding.
(c) Any notes maintained by a recipient of Confidential Information which embody or
reflect any ofthe Confidential Information provided under this Agreement shall, upon request ofthe
providing party, be either returned to the providing party or, at the option ofthe recipient, destroyed.
9. Fl,ffective Date
This Protective Agreement shall become effective on the date hereof
10. Jury lVqrygr
To the fullest extent permitted by law. each ofthe parties hereto waives any right it may have
6PROTECTIVE AGREEMENT
to a trial byjury 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 ajury trial cannot be or has not been waived.
7PROTECTIVt, AGREEMENT
DATED thiA day of Ocrober, 2o I 9.
ROCKY MOI,JNTAIN FOWER
R. Hogle
Gcneral Counsel
Wcst Nonh Tcmple, Suitc 320
Salt l.oke Ciry, Urah 84 I I 6
Attorncys R€prescnting
Rocky Morntdn Powcr
IDAHO
Dayn
Dcputy Aoomey General
Idoho hrblb Utllirics Commlssion
4?2 Wcsr W6hinEon StEot
Boisc. ID &1702
Anomey Rcprcsenting
ldaho Public Utilities Commission Staff
STAFF
EPROTECTTVE AGREEMENT
I
trssl
nerrotnS/day of October, 2019.
ROCKY MOUNTAIN POWER
By
Yvonne R. Hogle
Assistant General Counsel
1407 West North Temple, Suite 320
Salt Lake City, Utah 841 l6
Attomeys Representing
Rocky Mountain Power
IDAHO PUBLI CO ON STAFF
B
Dayn
Deputy Attomey General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attomey Representing
Idaho Public Utilities Commission Staff
8PROTECTTVE AGREEMENT
ROCKY MOUNTAIN PO}VER
B
Yvonne R. Hogle
Assistant General Counsel
1407 West Nonh Temple, Suite 320
Salt Lake Ciry, Urah Ml 16
Attomeys Representing
Rocky Mountain Power
IDAHO PUBLI ISSION STAFF
B
Dayn te
Deputy Attomey General
Idaho Public Utilities Commission
nn(!0lGxl[l6lht$XXrrar.r 11331 W Chinden Blvd
ffiXO(frfiHfl1 Building 8, Suite 201-A
Boise, ID 83714
Attomey Representing
ldaho Public Utilities Commission Staff
8PROTECTIVE AGREEMENT
DArED hifu-dayofOctober,2019.
I have reviewed the foregoing Protective Agreement dated October 30, 2019, in Case No. PAC-E-19-
08 and agree to be bound by the terms and conditions of such Agreement.
lvlike
Public Utilities Commission
Employer or Firm
I l33l W. Chinden Blvd., Buildinc 8. Suite 201-A
Business Address
Comniission Staff
Party
.t/
Date
EXHIBIT *A"
EXHIBIT "A"
EXHIBIT "A"
I have reviewed the foregoing Proteclive Agreement dated October 30, 2019, in Case No. PAC-E-19-
08 and agree to be bound by the terms and conditions of such Agreement.
Public Lltilities Comrnission
Employer or Firm
I 133 I W. Chinden Blvd.. Buildinc 8, Suite 201-A
Business Address
Commission Staff
Partv
lo 3r lzo tt
DatiJ
EXHIBIT "A"
EXHIBIT *A"
I have reviewed the foregoing Protective Agreement dated October 30, 2019, in Case No. PAC-E-I9-
08 and agree to be bound by the terms and conditions of such Agreement.
Jrri f"ailouh
Terri Carlock
Public Utilities Commission
Employer or Firm
I 133 I W. Chinden Blvd., Buildine 8, Suite 201-A
Business Address
Commission Staff
Party
Date
EXHIBIl'"A"
EXHIBIT ..A''
I have reviewed the foregoing Protective Agreement dated October 30,2019, in Case No. PAC-E-19-
08 and agree Io be bound by the terms and conditions of such Agreement.
Kev )4
Public Utilities Commission
Employer or Firm
lr33l w. Chinden Blvd.Buildine 8. Suite 201-A
Business Address
Commissi on Staff
Party
n
Date
\
EXHIBIT "A"
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated October 30, 2019, in Case No. PAC-E-I9-
08 and agree to be bound by the terms and conditions ofsuch Agreement.
ot-rA-[A
Chris Hecht
Public Utilities Commission
Employer or Firm
I l33l W. Chinden Blvd.. Buildin s 8, Suite 201-A
Business Address
Commission Staff
Party
Date
EXHIBIT "A''
EXHIBIT *A"
I have reviewed the foregoing hotective Agreement dated October 30,2019, in CaseNo. PAC-E-19-
08 and agree to be bormd by the terms and conditions of such Ageement.
Stacey Donoh
Public Utilities Commission
Employer or Firm
11331 W. Chinden Blvd.. Buildins 8. Suite 201-A
Business Address
Commission Staff
Party
Datc
EXHIBIT"A"
I
rD l7t l2c /cl