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Home My WebLink About20240906Protective Agreement.pdfPROTECTIVE AGREEMENT – INT-G-23-03 Page 1 of 9 PROTECTIVE AGREEMENT BETWEEN INTERMOUNTAIN GAS COMPANY AND THE IDAHO PUBLIC UTILITIES COMMISSION STAFF INT-G-23-03 This Protective Agreement is entered into this 28th day of June 2023 by and between Intermountain Gas Company (“Company”) and the Idaho Public Utilities Commission Staff (“Staff”). Other parties to the proceeding, such as any intervenors, may enter into this Protective Agreement by executing the Agreement. RECITALS: 1. WHEREAS, the Company and 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 (“Confidential Information”) as defined in Idaho Code §§ 74-107 through 74-109 and 48-801. 2. WHEREAS, the Company and the undersigned parties agree that entering into a Protective Agreement will expedite the production of documents; will afford the necessary protection to the Company’s and the undersigned parties’ employees and/or representatives in the 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 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. IDAPA 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. Confidential Information may also be exchanged via a secure Sharepoint site or similar means, in which case the party providing the Confidential Information shall provide to RECEIVED Wednesday, July 5, 2023 3:45:07 PM IDAHO PUBLIC UTILITIES COMMISSION PROTECTIVE AGREEMENT – INT-G-23-03 Page 2 of 9 the Parties the password and other information necessary to obtain and download the information. 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 Exhibit “A.” 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 he or she has reviewed the same and has consented to be bound by its terms. The Agreement PROTECTIVE AGREEMENT – INT-G-23-03 Page 3 of 9 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 is deemed to be non-confidential by the challenging party. (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 PROTECTIVE AGREEMENT – INT-G-23-03 Page 4 of 9 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. (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 – INT-G-23-03 Page 5 of 9 (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)(1), (15), and (i). 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. 6. Use 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 PROTECTIVE AGREEMENT – INT-G-23-03 Page 6 of 9 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) 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) On a case-by-case basis and upon notification to the utility, the Commission Staff may retain one copy of the Confidential Information under seal. Notwithstanding any other provision in this Agreement, any member of Staff may review and use that copy of the Confidential Information outside this proceeding while performing his or her duties as a Staff member by signing an Exhibit A. Staff’s use and disclosure of the Confidential Information in a later Commission proceeding shall be subject to any protective agreement signed in the subsequent proceeding. (c) 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 – INT-G-23-03 Page 7 of 9 9. Effective Date This Protective Agreement shall become effective on the date it is fully executed by the parties. DATED June 28, 2023. GIVENS PURSLEY LLP By: Preston N. Carter Givens Pursley, LLP Attorneys Representing Intermountain Gas Company IDAHO PUBLIC UTILITIES COMMISSION By: Dayn Hardie Deputy Attorney General Idaho Public Utilities Commission 11331 W. Chinden Bvd., Bldg, 8, Suite 201 A Boise, ID 83713 Attorneys Representing Idaho Public Utilities Commission Staff. (RESERVED FOR INTERVENOR) By: Its: (RESERVED FOR INTERVENOR) By: Its: PROTECTIVE AGREEMENT – INT-G-23-03 Page 8 of 9 (RESERVED FOR INTERVENOR) By: Its: