20090204Protective Agreement - Idaho Forest Group.pdf

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PROTECTIVE AGREEMENT 2009 FEB -4 PH 2: 50
BETWEEN A VISTA CORPORATION AND
IDAHO FOREST GROUP LLC Î'U.TIL¡IQ.hi"rJ.t.P)~;H~~\¡i¡\i2~c'
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J 1!ï ir.tJ '1Ths Protective Agreement is entered into this 2 ~ay of hmy 2009 by Avist
Corporation (Avista) and the Idaho Forest Group LLC ("Idaho Forest").
Recitals:
I . WHEREAS, A vista desire to mae available to the Idaho Forest ceain
information, and Idao Forest desir to examine cerain information, resectng Avista's
Application to Approve a Change in Electrc and Natu Gas Rates and Prices (Case Nos. A VU-
E-D9-0 11 A VU-G-09-0 1).
2. WHEREAS, Avista and Idaho Forest anticipate that Avista may provide, or
make available for review, cerain information considered by Avista to be of a trde secet,
privileged or confidential natue (as defined in Idaho Code § 9-340 et seq. and § 48-801 et seq.).
4. 'WHEREAS, A vista and Idaho Fores agree that enterig into a Protective
Agreement wil expedite the production of docuents; wil aford the necessar protecon to
Avista's and Idaho Forest's employees and/or representatives in this proceeding who might
review the information and subsequently be requested to reveal its contents by settng fort clea
cut parameter for use of Confidential Information, and wil protect Confidential Information
which might be provided hereafter,
IT is HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a) Confidential Information.
All documents, data informtion, studies and other materals fumisheQ that are
claimed to be of trade secret, proprietar or confidential nature (herein refered 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 claiin of confidentiality must be accompaned by an attorney's certificate that the
material is protected by law frm public disclosue and cite the specific legal authority to support
the claim. lDAPA 31.01.01.067 and 31.01.01.233. Access to and review of Confidential
Information shall be strictly controlled by the ters of this Agreement.
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO FOREST GROUP LLC
(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 Agreeent shaUneither use nor disclose the
Confidential Information for purposes of business or competition, or any purose other than the
purpse of prepartion for and conduct of Case Nos. A VU-E-09-01/A VU-G-09-01 and then
solely as contemplated herei, and shall keep the Confidential Information secure as trde secret,
confidential or proprietar information and in accordace with the puroses and intent of ths
Agreement.
(e) Persons Entitled to Review.
Access to Confdential Informaton shall be limited to counsel of the undersigned
paries, employees, expers, agents or representatives of the undersigned pares who have
executed an Exhbit "A" to this Agreement Such information will be clealy marked and
protected from unauthorized public disclosue.
(d) Nondisclosure Agreement.
Confidential Information shall not be disclosed to any peon who has not signed a
nondisclosure agreement on this form, which is attached hereto as Exhibit "A" and incorpraed
herein. The nondisclosur agreement or Exhibit "A" shall require the peron to whom disclosure
is to be made to read a copy ofthIs Protective Agreement and to cerify in wrting that he or she
has reviewed the same and has consented to be bound by its ters. The Agreement shall contain
the signatory's full name, permanent address, and employer. Such agreement shaU be delivered
to counsel for A vista and acknowledged and approved by A vista before disclosure is made.
2. (a) Copies.
No copies or trnscrptions of the Confidential Information shall be made by Idaho
Forest and/or Avista except as necessar to make the information available to individuals who
have executed an Exhibit "A" to ths Protecive Agreement.
(b) Retun of Confidential Information.
Upon request of A vista, all original documents and copies of the Confidential
Information shall be: (l) retued to Avista, or (2) shredded by the holder of such documents.
Unless otherwse ordered, Confidential Information, including transcrpts or
depositions containing information to which a claim of confdentiality is made, shall remain
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO FOREST GROUP LLC 2
under sea, shall continue to be subject to the protective requirements of this Agreement, and
shall likewise, be returned to counsel for Avista within thirt (30) days after final settlement or
conclusion of the proceedings before the Commission which Confidential Information is relevant
including admistrtive or judicial review thereof. After retu of documents puruant to this
Paragraph, and upon request, a wrtten receipt verifyng retu shall be provided by counsel.
(c) Return of Notes.
Any notes maintained by a recipient of Confdential Information, which embody or
reflec any of the Confidential Information provided under this Agreement shan, upon reuest of
A vista, be either returned to Avista or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty.
The furnishing of any docwnent, information, data, study or other materals puruant
to this Protective Agreement shall in no way limit or waive the right of the providing pary to
object to its relevance or admissibilty in any proceegs before ths Commssion.
4. Challenge to Confidentialitv.
(a) Initial Chalenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information A vista claims is confidential. In any proceeing before the Coinssion, Idao
Forest may challenge the characterzation of any information, document, data, or study claimed
by A vista to be a trde secret, proprietar or confidential information. If seeking to challenge the
confidentiality of any information Idaho Forest shall first contact counel for Avita and attempt
to resolve any differnce by stipulation. Resolution may include removing the confidential
classifications, creating a non-confidential summary, reformatting the information, etc.
(b) Subsequent Challenge.
In the event tliat the paries caot agree as to the character of tlie information
challenged, Idaho Forest may challenge the confidentiality of the information by petitioning in
any proceding in which the information is relevant the Commission to rule upon the disputed
infonnation. The Petition shall be served upon the Commission and all pares to the proceding
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.Idaho Forest.
PROTECTIVE AGREEMEl'i BETWEEN
A VISTA CORPORA nON A."lD
IDAHO FOREST GROUP LLC 3
(c) Challenge Hearng.
Idaho Foret 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 Agreeent shall be present This hearng shall be commenced no earlier than five (5)
business days after serving the Petition on Avista and the Commission. The record of the in
camera hearng shall be marked "CONFIDENTIA -- Subject to Protective Agreement." To
the extent necesar, the transcript of such heag shall be separately bound, segregated, seaed,
and \\ithheld from public inspection by any peron not bound by the ters of this Agreement.
(d) Determination.
The pares will ask the Commission to issue an Order determning whether any
challenged information or materal is not properly deeed to be exempt from public disclosue
pursuant to the Idaho Public Records Act. (Idaho Code § 9-335 et seq.) If information is found
to be not exempt frm disclosure, Idaho Forest shall not disclose such chalenged materal or use
it in the public recrd or otherise outside the proceedings for at leat five (5) business days
unless Avista consents to such conduct. This proceur enables the providing par to seek a
stay or other relief from the Commission's Order removing the restctions of ths Agreeent
from materal 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 confdential in the following maner:
(1) If Idaho Forest intends to use Confidential Information or to make
substative reference to Confdential Information supplied to it under
this Agreement, it shall give reasonable prior notice of such intention to
A vista and shall provide copies of the used Confidential Information or
substantive reference to Confidential Information only to the providing
party, and such other paries, if any, who have executed an Exhibit "A"
to ths Protective Agreement.
(2) One (1) copy of the used Confidential Information or substantive
reference to Confidential Informtion or substantive reference to
Confidential Information described in Paragraph 5(a)(1) shall be placed
in the sealed record.
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORA nON AND
IDAHO FOREST GROUP LLC 4
(3) Only one (1) copy of the documents designated to be placed in a sealed
record shall be made, which copy shall be supplied by the providing
party.
(4) 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 in accordance with the terms ofths Protective Agreement.
(b) SeaL.
Whle in the custody of the Commssion, materals containing Confidential
Information. shall be mared "CONFIDENTIAL - SUBJECT TO ATTORNY'S
CERTIFICATE OF CONFDENTIALITY" and shall not be examined by any peron except
under the conditions set forth in ths Agrent, if applicable.
(c) In Camera Hearing and Transcripts.
Any Confidential Informtion that must be orally disclosed at a heag in the
proceengs shal be offered at an in camera heag, attended only by persons authorized to
have access to the infoffiation under this Protective Agreement. Similarly, any trcription of
any examination or other reference to Confdential Information (or that portion of the record
contaning Confidential Information) shall be marked and treated as provided herein for
Confidential Information. See IDAPA 31.01.01.287.
(d) Access to Record.
Access to sealed testimony, records, and information shall be limted to the
Commission and persons who have signed an Exhbit "An as provided in ths Protective
Agreement, unless such information is released frm the restrctions of this Agreeent either
through agreement of the paries or after notice to the partes and hearng, pursuant to the order
of the Coinission and/or the final order of a court havig final jursdiction.
(e) AppeaL.
Should an appeal from the proceeding be taen, 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 puroses of an appeal, the providing pary shall be notified which
portion of the sealed record has been designated by the appealing party as necessary to the record
on appeal.
PROTECTIVE AGREMENT BETIvIEN
AVISTA CORPORATION AND
IDAHO FOREST GROUP LLC 5
6. Destrction.
Unless otherse ordered, Confidential Information provided puruat to a discovery
request and this Agreement, including transcrpts of any discover depositions to which a claim
of confidentiality is made, shall remain under seal, shall continue to be subjec to the protecve
requirements of this Agreeient, and shall be destryed withn thirty (30) days after final
settlement or conclusion of this matter, including administrtive or judicial review thereof
7. Use in Pleadings.
Where references to Confidential Information in the seaed record or with the
custodian is required in pleadings, briefs, arguments, or motions (except as provided in
Pargrph 5), it shall be by citation to title or exhbit number or some other descrption that will
not disclose the substantive Confidential Information contained therein. Any use of or
substative references to Confidential Informtion shall be placed in a separate section of the
pleading or brief and submitted to the Commission pursant to Paragraph 5. This sealed section
shall be serviced only on counsel of record who have signed the non-disclosure agreements set
fort in Exhibit "A" attached to this Protective Agreement, and may, in turn, be disclosed by
them only to individuals who likewse signed Exhibit "A".
8. Summary of Record.
If deeed necessar by the Commission, A vista shall prepare a wrtten sumar of
the Confidential Informtion referred to in Orders to be issued to the public and the pares.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORATION AND
IDAHO FOREST GROUP LLC 6
~b It~vt ~
DATED this ")-: day of..2009.
A VISTA CORPORATION
BY~ZIDaviueer I
A vista Corporation
P.O. Box 3727
i 4 i 1 E. Mission Ave.
Spokane, WA 99220-3727
Vice President and Chief Counsel for Reguatory and
Government Affairs - Avista Corporation
IDAHO FOREST GROUP LLC
By~Wt=
Dea J. MiÌler
McDevitt & Miler LLP
420 W. Banock Stret
P. O. Box 2564
Boise, il 83702
Attorney Representig
Idaho Forest Group LLC
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO FOREST GROUP LLC 7
EXHIT A
I have reviewed the foregoing Protetie Agreement dated , 2009 in
cae No. AVU-E-09-Øi and AVU-G-09-0i and agree to be bound bytbe teims and conditons of such
Ageement.
PROTECTIVE AGREEMENT BETWEN
AVISA CORPORATION AND
IDAHO FOREST GROUP LL
Scott Atkson
Name
Idaho Forest Group, LLC
Employer or Fir
447 E. Chtco Road
Athol, ID 83801
Business Address
u--Par
l "'L:~-di
Date
¡..'
8
Jan l/j W i l:~Larr Crowley 208345-2424 p.1
..
EXlTA
1 have reiewed the foreoig Protecve Agreeent da , 2009 in
Cas No. AVU.E.09-01 an AVU-G-0-oi and agee to be bou by the te an condiion of such
Agren.
Lan Crwley. Direcr
Name
Th Energy Strate¡ Init Inc.
Employer or Fir
5549 S Clsedge Avenue. Boise. ID 83716
Business AddressÃ"~Par
Janar 28. 2009
Date
PROTECT AGREEME BETWEN
A VISTA CORPRATION AN
IDAHO FORET GROUP LL 8