20180223Protective Agreement.pdf

il.IC:tvID
PROTECTIVE AGREEMENTBETWEEN i$:A f[0 23 PFi 2: 3o
HYDRO ONE (acting through its acquisition subsidiary Olympus Equity L!.Q), ap$ , ,^AVISTACORPORATIONAND , ,;:.... :],..,:I.;,.,N'*
IDAHO PUBLIC UTILITIES COMMISSION STAFF ; i : - I-- I':I' IVUIV't
(AND OTHER PARTIES AS APPLICABLE)
IN CASE NO. AVU-17-09/AVU-G-17-05
This Protective Agreement is entered into ttris l{h day of December 2017 by Hydro One
(acting through its acquisition subsidiary Olympus Equity LLC) (hereafter "Hydro One"), and Avista
Corporation (hereafter "Avista") Utilities and the Idaho Public Utilities Commission ("Staff'), in
connection with Case No. AVU-E-17-09 / AVU-G-17-05.
Recitals:
1. WHEREAS, Hydro One and Avista and the Idaho Public Utilities Commission Staff
(hereinafter "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 (as defined in ldaho Code ** 14-107 through 7 4-109 and 48-801 ).
2. WHEREAS, Hydro One and Avista and the undersigned parties agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary protection
to Hydro One and Avista and the undersigned parties' employees and"/or representatives in the
proceeding who might review the information and subsequentlybe requested to reveal its contents by
setting forth clear cut parameters for use of Confidential Information and Highly Confidential
Information, both as defined below, and will protect Confidential Information and Highly
Confidential Information which might be provided during the course of the proceedings, now
therefore,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. This Asreement Governs
This Agreement governs all access, review, use, and disclosure of any material designated by
the parties to this Agreement as Confidential lnformation or Highly Confidential lnformation, as
defined below, in this proceeding.
2. Confidential and Hiehlv Confidential Information
(a) Confidential Information
"Confidential Information" is information that:
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i. falls within the scope of Idaho Code $ $ 7 4-lO7 through 7 4-109 and 48-80 I (trade
secret, proprietary, privileged and/or other confidential information); and
ii. is not publicly available.
(b) Hiehlv Confidential Information
"Highly Confidential lnformation" is information that:
i. falls within the scope of Idaho Code $$ 74-lO7 through 74-lO9 and48-801 (trade
secret, proprietary, privileged and"/or other confidential information);
ii. is not publicly available; and
iii. is Confidential Information to which even more restricted access is necessary to
ensure the information is not disclosed to the detriment of the provider (or the
party designating the information as confidential, if not the provider).
(c) Desienation of Confidential Information and Hiehlv 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 of trade secret, proprietary or confidential nature (herein referred
to as "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, proprietaryorconfidential nature
and printed on "yellow" paper. IDAPA 31.01.01.067.
"Highly Confidential [nformation" shall be so marked and printed on "green" 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 3 1.01.01.233.
(d) Protection of Confidential Information and Hiehlv Confidential Information
Access to and review of Confidential lnformation and Highly 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."
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"Highly Confidential lnformation" will be provided in hard copy only or otherwise made
available for viewing at a time and place agreed upon by the parties. It may not be duplicated, or
otherwise distributed electronically. Parties must store the "Highly Confidential Information" in a
locked room or cabinet dedicated to the storage of "Highly Confidential lnformation".
(e) Use of Confidential Information and Highlv Confidential Information
All persons who may be entitled to review, or who are afforded access to any Confidential
lnformation (hereafter, unless otherwise noted, including "Highly Confidential lnformation") 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 the
proceedings, and then solely as contemplated herein, and shall keep the Confidential lnformation
secure as trade secret, confidential or proprietary information and in accordance with the purposes
and intent of this Agreement.
(f) 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 and who have a legitimate and non-competitive need for the
Confidential lnformation and not simply a general interest in the information. Such information will
be clearly marked and protected from unauthorized public disclosure.
(g) Non-disclosureAsreement
Confidential lnformation 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 the providing party, before disclosure is made.
3. 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.
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4. 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 any proceedings before this Commission.
5. Challense to Confidentialitv
(a) Initial Challenee
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
or confidential information. A party seeking to challenge the confidentiality of any 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.
(b) SubsequentChallenee
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 case 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 the challenging party.
(c) Challense Hearins
The challenging party 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 the providing party and the Commission. The record of
the in camera hearing shall be maTked "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.
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(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
IdahoPublicRecords Act(ldaho Code$$74-l0l throughT4-126).Ifinformationisfoundtobenot
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 restrictions of this Agreement from
material claimed to be confidential. Such relief may be sought from the Commission or a court of
competent j urisdiction.
6. (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 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 of the used Confidential Information
or substantive reference to Confidential lnformation 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 lnformation
described in paragraph 6(a)(l) 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.
(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 PROTECTM AGREEMENT" and shall not be examined by any
person except under the conditions set forth in this Agreement. Highly Confidential Information
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shall be marked "HIGHLY CONFIDENTIAL - SUBJECT TO ATTORNEY'S CERTIFICATE
OF CONFIDENTIALITY AND PROTECTM AGREEMENT" and shall not be examined by
any person except under the conditions set forth in this Agreement.
(c) /n Camera Hearinq and Transcripts
Any Confidential lnformation 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 lnformation.
(d) Access to Record
Access to sealed testimony, records, and information shall be limitedto 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.
7. Useiu fleadrueE
Where references to Confidential lnformation 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 lnformation contained therein. Any use of or substantive references to Confidential
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 of record
who have signed the nondisclosure agreements set forth in Exhibit "A" attached to this Protective
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Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
,,Atr.
8. 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.
9. Return or Destruction of Confidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential lnformation shall be: (1) returned to the providing party; or (2) or at the option of the
recipient destroyed within thirty (30) days after the final settlement or conclusion of the proceedings,
including administrative or judicial review thereof. After return or destruction of 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 Hydro One and/or Avista, as
applicable, Staff may retain one copy of the Confidential lnformation under seal. Any copy of
Confidential Information retained by Staff pursuant to this subsection 9(b) may be shared and
discussed among members of Staff for internal purposes but will continue to be subject to the
protections of this Agreement. Staff may not disclose Confidential Information to any party in
another proceeding other than Staff. Highly Confidential Information, however, shall not be
retained, and shall be either returned or destroyed, with a written verification provided by counsel
attesting to the return or destruction of such materials.
(c) Any notes maintained by a recipient of Confidential Information which embody or
reflect any of the Confidential lnformation provided under this Agreement shall, upon request of the
providing party, be either returned to the providing party or, at the option of the recipient, destroyed.
10. Notice of Compelled Production in Other Jurisdictions
If a signatory to this Agreement is compelled to produce Confidential Information in any
regulatory orjudicial proceeding by the body conducting the proceeding, the signatory must provide
notice to the party that provided the Confidential Information. Such Confidential Information must
not be produced for at least ten ( l0) business days following notice, to permit the party that provided
the information an opportunity to defend the confidential nature of the material before the regulatory
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or judicial body that would compel production. Disclosurc after that date, in cornpliance with an
order compelling produclion, is not a violation of this Agrecment.
11. Effectlve Date
This Protective Agrcement shall becorne effcctive on thc date hcrcof.
DATED this -Llhay of Deccmb er,Z}ll.
K&L GATES, LLP AVISTA CORPORATION
B
Elizabeth Partner, [pro vicel
Kari Vander Stoep, Partncr, [pro huc vicel
K&L Gates LLP
On Bchalf of Hydro Onc Limited
Olympus Equity LLC
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-l158
Liz. thomas @ kl gates.com
kari.vanderstoep @ kl gatcs.com
IDAHO STAFF
David J. Meyer,ISB No. E317
Chief Counscl for Regulatory and
Governmental Affoirs
Avista Corporation
l4l I E. Mission Ave., MSC-27
Spokane, WA 99220-37n
David. meyer@ avi stacorp.com
l
Dcputy Attorneys Gcnerd
Idaho Public Utilitles Commission
472 Wcst Woshington Strcct
Boisc, ID 83702
Auomeys Represcnting
Idalro Public Utilities Commission Staff
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or judicial body that would compel production. Disclosure after that date, in compliance with an
order compelling production, is not a violation of this Agreement.
11. Effective Date
This Protective Agreement shall become effective on the date hereof.
DATED this -E*day of December,2ol7.
K&L GATES, LLP AVISTA CORPORATION
BY BY
Elizabeth Thomas, Partner, [pro hac vice]
Kari Vander Stoep, Partner, [pro hac vice]
K&L Gates LLP
On Behalf of Hydro One Limited
Olympus Equity LLC
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-l158
Liz.thomas @ klgates.com
kari. vanderstoep @ klgates.com
IDAHO
PROTECTTVE AGREEMENT
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David J. Meyer, ISB No. 8317
Chief Counsel for Regulatory and
Governmental Affairs
Avista Corporation
l41l E. Mission Ave., MSC-27
Spokane,WA 99220-3727
David. meyer @ avistacorp.com
lZ.t
COMMISSION STAFF
Deputy Attomeys General
Idaho Public Utilities Commission
47 2 W est Washington Street
Boise, lD 83702
Attomeys Representing
Idaho Public Utilities Commission Staff
8
EXHIBIT "A'
I have reviewed the foregoing Protective Agreement dated this 136 day of December 2017 in Case
Nos. AVU-E-17-09/AVU-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Farley
Public Utilities Commission
Employer or Firm
472 W. Washinston Street.rD 83702
Business Address
Commission Staff
Party
Date
I
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this l3th day of December 2017 in Case
Nos. AVU-E-17-09/AVU-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Mike Louis
Public Utilities Commission
Employer or Firm
472W. Washinston Street, Boise, ID 83702
Business Address
Commission Staff
Party
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this 13ft day of December 2017 in Case
Nos. AVU-E-17-09/AW-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Public Utilities Commission
Employer or Firm
472 W . Washineton Street.se- ID 83702
Business Address
Commission Staff
Party
F
a/r
^l
r,
Date I
EXHIBIT "A''
I have reviewed the foregoing Protective Agreement dated this 13ft day of December 2017 in Case
Nos. AVU-E-17-09/AVU-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Kevin Keyt
Public Utilities Commission
Employer or Firm
412W. Washington Street. Boise, ID 83702
Business Address
Commission Staff
Party
Date
EXHIBIT ..A"
I have reviewed the foregoing Protective Agreement dated this l3th day of December 2017 in Case
Nos. AVU-E-17-09/AVU-G-17-05 and agree to be bound by the terms and conditions of such Agreement.
Terry
Public Utilities Commission
Employer or Firm
472 W. Washinston Street. Boise. ID 83702
Business Address
Commission Staff
Party
t7 1..{Lo(
EXHIBIT *A'
I have reviewed the foregoing Protective Agreement dated this l3m day of December 2017 in Case
Nos. AVU-E-I7-09/AW-G-17-05 and agree to by the terms and conditions of such Agreement.
Donn English
Public Utilities Commission
Employer or Firm
472W. Washinston Street. Boise. ID 83702
Business Address
Commission Staff
Party
/2-/q- /)
Date
,'/.'/'
EXHIBIT "A''
I have reviewed the foregoing Protective Agreement dated this 13th day of December 2017 in Case
Nos. AVU-E- l7-09IAVU-G- I 7-05 and agree to be bound by the terms and conditions of such Agreement.
''l,n; C,rnlrcft
Terri Carlock
Public Utilities Commission
Employer or Firm
4 W
Business Address
Commission Staff
Party
tl I x0 t'7
Date
ID R3702
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this l3th day of December 2017 in Case
Nos. AVU-E- 17-09/AVU-G- l 7-05 and agree to be bound by the terms and conditions of such Agreement.
?*
Randy Lobb
Public Utilities Commission
Employer or Firm
472W. Washinston Street. Boise, ID 83702
Business Address
Commission Staff
Party
ru lrz lzo'l
Date
d-r0r?-