20121031Protective Agreement Avista & Clearwater.pdf

PROTECTIVE AGREEMENT
BETWEEN AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION
This Protective Agreement is entered into this I 11h day of October 2012 by Avista
Corporation (Avista) and the Clearwater Paper Corporation ("Clearwater").
Recitals:
1.WHEREAS, Avista desires to make available to the Clearwater certain
information, and Clearwater desires to examine certain information, respecting Avista's
Application to Approve a Change in Electric and Natural Gas Rates and Prices (Case Nos. AVU-
E- 12-08/A VU-G- 12-07).
2.WHEREAS, Avista and Clearwater anticipate that Avista may provide, or make
available for review, certain information considered by Avista to be of a trade secret, privileged
or confidential nature (as defined in Idaho Code § 9-340 et seq. and § 48-801 et seq.).
4. WHEREAS, Avista and Clearwater agree that entering into a Protective
Agreement will expedite the production of documents; will afford the necessary protection to
Avista's and Clearwater'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:
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 Avista by stamping the same with a
designation indicating its trade secret, proprietary or confidential nature and printed on "yellow"
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
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION
4
(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 Nos. AVU-E-12-08/AVU-G-12-07 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)Nondisclosure Agreement.
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
Clearwater and/or Avista 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 Avista, all original documents and copies of the Confidential
Information shall be: (1) returned to Avista, or (2) shredded by the holder of such documents.
Unless otherwise ordered, Confidential Informatiofl, including transcripts or
depositions containing information to which a claim of confidentiality is made, shall remain
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION 2
under seal, shall continue to be subject to the protective requirements of this Agreement, and
shall likewise, be returned to counsel for Avista 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
Avista, be either returned to Avista or, at the option of the recipient, destroyed.
3.Non-waiver of Objection to Admissibility.
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.Challenge to Confidentiality.
(a)Initial Challen2e.
This Protective Agreement establishes a procedure for the expeditious handling of
information Avista claims is confidential. In any proceeding before the Commission, Clearwater
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 Clearwater shall first contact counsel for Avista 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 Challenge.
In the event that the parties cannot agree as to the character of the information
challenged, Clearwater 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 Clearwater.
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION 3
(c)Challenge Hearing.
Clearwater 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 Avista 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 Idaho Public Records Act. (Idaho Code § 9-335 et seq.) If information is found
to be not exempt from disclosure, Clearwater 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
Avista 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 Clearwater 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 Agreement.
(2)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.
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION 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 Avista to the 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 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)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
Confidential Information. See 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
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
CLEARWATER PAPER CORPORATION 5
6.Destruction.
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 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 "A".
8.Summary of Record.
If deemed necessary by the Commission, Avista shall prepare a written summary of
the Confidential Information 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
AVISTA CORPORATION AND
CLEAR WATER PAPER CORPORATION 6
4v (12k I
DATED this 11th day of October 2012.
AVISTA CORPORATION
By 1 David Y Me~r
Avista Corporation
P.O. Box 3727
1411 B. Mission Ave.
Spokane, WA 99220-3727
Vice President and Chief Counsel for Regulatory and
Government Affairs - Avista Corporation
CLEARWATER PAPER CORPORATION
d
By \J \f,
Peter J. Richardson
Richardson & O'Leary PLLC
515 N. 27th Street
Boise, ID 83702
Representing
Clearwater Paper Corporation
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION 7
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated October , 2012 in
Case No. AVU-E-12-08 and AVU-G-12-07, and agree to be bound by the terms and conditions of such
Agreement.
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PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION 8
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EXHIBIT A
I have reviewed the foregoing Protective Agreement dated October I) , 2012 in
Case No. AVU-E- 12-08 and AVU-G- 12-07, and agree to be bound by the terms and conditions of such
Agreement.
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PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
CLEARWATER PAPER CORPORATION