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PROTECTIVE AGREEMENT
BETWEEN
INTERMOUNT AIN GAS COMPANY
AND
IDAHO PUBLIC UTILITIES COMMISSION INTERVENOR
This Protective Agreement (" Agreement" or "Protective Agreement") is
entered on the date below written, by Intermountain Gas Company ("Intermountain" or the
"Company") and Northwest Industrial Gas Users ("Intervenor"); hereinafter the "Parties".
Recitals:
1. WHEREAS, Intermountain desires to make available to Intervenor certain
information respecting the Application of Intermountain to change Base Rates in IPUC Case No.
INT-G-16-02, hereinafter, the "proceedings", and Intervenor desires to receive such information.
2. WHEREAS, Intermountain and Intervenor anticipate that parties to the Proceedings
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 Idaho Code§§ 74-107 through 74-109 and 48-801.
3. WHEREAS, Intermountain and the undersigned parties agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary
protection to Intermountain and the undersigned parties' employees and/or representatives in the
Proceedings 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 of the Proceedings.
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED AS
FOLLOWS:
1. (a) 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 "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. IDAP A
PROTECTIVE AGREEMENT
•, 31.01.01.067.02. If in electronic form, the Confidential Information shall be reproduced
separately 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 from public disclosure and cite the specific legal authority to
support the claim. See Rules 67.03 and 233; IDAPA 31.01.01.067.03 and .233.
(b) Protection of Confidential Information
Access to and review of Confidential 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 of this Agreement, and
shall not be disclosed to individuals who have not executed the nondisclosure agreement set forth
in attached Exhibit "A", agreeing to be bound by the terms and conditions of this Protective
Agreement. 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 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 Information secure as trade secret, confidential or
proprietary information 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 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.
(e) Non-disclosure Agreement
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 certify in writing that
PROTECTIVE AGREEMENT 2
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.
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 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 Challenge
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. IDAPA
31.01.01.067 .04.
(b) Subsequent Challenge
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.
PROTECTIVE AGREEMENT 3
(c) Challenge Hearing
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 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. 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 Records Act (Idaho Code §§ 74-101 through 74-126). If
information 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 party 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.
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 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 Information only to
the providing party, and such other parties, if any, who have executed an
Exhibit "A" to this Protective Agreement.
PROTECTIVE AGREEMENT 4
(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)(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 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. Rule 243, IDAPA
31.01.01.243. 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. 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 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. See Idaho Court Administrative
Rules 32(g)(l ), (15), and (i). If a portion of the record is forwarded to a court under seal for the
PROTECTIVE AGREEMENT 5
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. Uses in Pleadings
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 served only
on counsel of record who have signed the nondisclosure 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".
7. Summary 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) Use of the Confidential Information is for the limited duration of the
Proceedings. Upon request of the providing party, all original documents and copies of the
Confidential Information 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) 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 the providing party, be either returned to the providing party or, at the option of the recipient,
destroyed.
PROTECTIVE AGREEMENT 6
9. Effective Date
This Protective Agreement shall become effective on the date hereof.
DATED this 281h day of September 2016.
INTERMOUNTAIN GAS COMPANY
Ronald L. Williams
Attorney for Intermountain Gas Company
INTERVENOR
By~ ~
Attorney Representing: Northwest Industrial Gas Users
PROTECTIVE AGREEMENT 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the terms and conditions
of such Agreement.
Chad M. Stokes
Name
Cable Huston LLP
Employer or Firm
1001 SW 5th Avenue, Suite 2000, Portland, OR 97204
Business Address
Northwest Industrial Gas Users
Party
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the terms and conditions
of such Agreement.
Tommy A Brooks
Name
Cable Huston LLP
Employer or Firm
1001 SW 5th Avenue, Suite 2000, Portland, OR 97204
Business Address
Northwest Industrial Gas Users
Party
lo. z ~ ... Z.ol<tJ
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the tenns and conditions
of such Agreement.
Edward A. Finklea ZJ,u __ . J) {( J, -II() _ .......................... -------········· .. ~--.. ·----111·~l:. __ _
Name
Northwest Industrial Gas Users
Employer or Firm
545 Grandview Drive, Ashland, OR 97520
Business Address
Northwest Industrial Gas Users
Party
/ 0 I) {I/ .J_IJ/b
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the terms a d conditions
of such Agreement.
Michael P. Gorman
Name
Brubaker & Associates, Inc.
Employer or Firm
16690 Swingley Ridge Rd., Ste. 140, Chesterfield, MO 63017
Business Address
Northwest Industrial Gas Users
Party
October 21, 2016
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the terms and conditions
of such Agreement.
Brian C. Collins
Name
Brubaker & Associates, Inc.
Employer or Firm
16690 Swingley Ridge Rd., Ste. 140, Chesterfield, MO 63017
Business Address
Northwest Industrial Gas Users
Party
October 21, 2016
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the terms and conditions
of such Agreement.
Jessica A. York
Name
Brubaker & Associates, Inc.
Employer or Firm
16690 Swingley Ridge Rd., Ste. 140, Chesterfield, MO 63017
Business Address
Northwest Industrial Gas Users
Party
October 21, 2016
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28th, 2016, in Case
No. INT-G-16-02 and Case No. INT-G-16-03, and agree to be bound by the terms and conditions
of such Agreement.
Christopher C. Walters
Name
Brubaker & Associates, Inc.
Employer or Firm
16690 Swingley Ridge Rd., Ste. 140, Chesterfield, MO 63017
Business Address
Northwest Industrial Gas Users
Party
October 21, 2016
Date
EXHIBIT A TO PROTECTIVE AGREEMENT 8