20071005Protective Agreement.pdf

PR OTECTIVE AGREEMENT
BETWEEN A VISTA CORPORATION AND 2lifilOCT -PI'1 2: \ 4
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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This Protective Agreement is entered into this 18th day of September 2007 by Avista
Corporation (A vista) and the Idaho Public Utilities Commission Staff (Staff).
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Recitals:
1. WHEREAS, A vista desires to make available to the Staff certain information
and Staff desires to examine certain information , respecting Avista s Application to Approve a
Change in Natural Gas Rates and Prices (Case No. A VU-07-02).
2. WHEREAS, A vista and Staff anticipt;tte that A vista may provide, or make
available for review, certain information considered by A vista to be of a trade secret, privileged
or confidential nature (as defined in Idaho Code 9 9-340 et seq. and 9 48-801 et seq.
4. WHEREAS, A vista and Staff agree that entering into a Protective Agreement
will expedite the production of documents; will afford the necessary protection to A vista s and
Staff'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, andwill protect Confidential Information which might be provided
hereafter
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a) Confidential Information
All documents, data, information, studies and other materials furnished that are
claimed to be of trade secret, proprietary or confidential nature (herein referred to as
Confidential Information ) shall be so marked by A vista by stamping the same with a
designation indicating its trade secret, proprietary or confidential nature and printed on "colored"
paper. Any claim of confidentiality must be accompanied by an attorney s certificate that the
material is protected by law from public disclosure and cite the specific legal authority to support
the claim. IDAPA 31.01.01.067 and 31.01.01.233. Access to and review of Confidential
Information shall be strictly controlled by the terms of this Agreement.
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COl\1MISSION STAFF
(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 Case No. A VU-07-02 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 AA= to this Agreement. Such information will be clearly marked and
protected from unauthorized public disclosure.
(d) Nondisclosure A2reement
Confidential Information shall not be disclosed to any person who has not signed a
nondisclosure agreement on this form, which is attached hereto as Exhibit A" and incorporated
herein. The nondisclosure 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 Avista and acknowledged and approved by Avista before disclosure is made.
2. (a) Copies
No copies or transcriptions of the Confidential Information shall be made by Staff
and/or A vista 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 A vista, all original documents and copies of the Confidential
Infonnation shall be: 1) returned to A vista, or 2) shredded by the holder of such documents.
Unless otherwise ordered, Confidential Information, including transcripts or
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
PROTECTIVE AGREEMENT BETWEEN
1\V1S1'1-\ COlU'Oll.!\. nON AND
mAna PUBLIC lJTILITIES COMMISSION STAFF
shall likewise, be returned to counsel for A vista within thirty (30) days after final settlement or
conclusion of the proceedings before the Commission which Confidential Information is relevant
including administrative or judicial review thereof. After return of documents pursuant to this
Paragraph, and upon request, a written receipt verifying return 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
A vista, be either returned to A vista or, at the option of the recipient, destroyed.
3. Nonwaiver of Objection to Admissibility.
The furnishing of any document, information, data, study or other materials pu(suant
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. Challen2e to Confidentiality
(a)Initial Challen2e
This Protective Agreement establishes a procedure for the expeditious handling of
information A vista claims is confidential. In any proceeding before the Commission , Staff may
challenge the characterization of any information, document, data or study claimed by Avista to
be a trade secret, proprietary or confidential information. If seeking to challenge the
confidentiality of any information Staff shall first contact counsel for A vista 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 Challen2e.
In the event that the parties cannot agree as to the character of the information
challenged, Staff may challenge the confidentiality of the information by petitioning in any
proceeding in which the information is relevant the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all parties to the proceeding
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 Staff.
(c) Challen2e Hearin2
Staff shall request that the Commission conduct an in camera proceeding where only
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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 A vista and the Commission. The record of the in camera
hearing shall be marked CONFIDENTIAL u 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. (Idaho Code 9 9-335 et seq.If information is found to
be not exempt from disclosure, Staff shall not disclose such challenged material or use it in the
public record, or otherwise outside the proceedings for at least five (5) business days unless
A vista consents to such conduct. This procedure enables the providing party to seek a stay or
other relief from the Commission s Order removing 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 materials
claimed to be confidential in the following manner:
(1)If Staff 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 Avista 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
(2)
Agreement.
One (1) copy of the 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)Only one (1) copy of the documents designated to be placed in a sealed
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
(4)
record shall be made, which copy shall be supplied by the providing party.
The copy of the documents to be placed in the sealed record shall be
tendered by counsel for A vista to the Commission, and shall be maintained
(b)
in accordance with the terms of this Protective Agreement.
Seal.
While in the custody of the Commission, materials containing Confidential
Information shall be marked CONFIDENTIAL - SUBJECT TO ATTORNEY'
CERTIFICATE OF CONFIDENTIALITY" and shall not be examined by any person except
under the conditions set forth in this Agreement, if applicable.
(c)In Camera Hearin2 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
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. See IDAP A 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
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 of the sealed record has been designated by the appealing party as necessary to the record
on appeal.
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
6. Destruction for 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 Pleadin2s
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 non-disclosure 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
8. Summary of Record
If deemed necessary by the Commission , A vista shall prepare a written summary of
the Confidential Infonnation referred to in Orders to be issued to the public and the parties.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORA nON AND
IDAHO PUBLIC UTILITIES COl\1MISSION STAFF
DATED this 19th day of September 2007.
AVISTA CORPORATION
By
'.-
Davi~Meyer
. ,
A vista Corporation
O. Box 3727
1411 E. Mission Ave.
Spokane, W A 99220-3727
Vice President and Chief Counsel for Regulatory and
Government Affairs - A vista Corporation
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Donovan E. Walker
----
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this 18th day of September 2007 in Case
No. A VU-07-02 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
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 18th day of September 2007 in Case
No. A VU-07-02 and agree to be bound by the tenns and conditions of
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho
Business Address
Commission Staff
Party
9. /7/.
Date
reement.
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this 18th day of September 2007 in Case
No. A VU-07-02 and agree to be bound by the terms and conditions of such Agreement.
UI~
MARIL YN PARKE
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, Idaho
Business Address
Commission Staff
Party
1()-.s-O7
Date