20040413Protective Agreement.pdf

JOHN R. HAMMOND, JR.
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, ID 83720-0074
IDAHO BAR NO. 5470
Tele: [phone]
FAX: [phone]
Attorney for the Staff of the Idaho Public Utilities Commission
DEAN J. MILLER
McDEVITT & MILLER LLP
420 WEST BANNOCK STREET
BOISE, ID 83702
Tele: [phone]
Fax: [phone]
Attorneys for aCMC, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE STAFF'S PETITION
TO INITIATE A COMMISSION INVESTIGATION
TO DETERMINE IF OCMC, INC. VIOLATED
THE TERMS OF ITS PRICE LIST AND THE
COMMISSION'S OPERATOR SERVICES AND
PAY TELEPHONE RULE 104.04.
CASE NO. GNR-04-
PROTECTIVE
AGREEMENT
1. WHEREAS the undersigned parties (hereinafter jointly referred to as "participating
parties ) anticipate that they 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 in
the above-referenced docket (hereinafter "Proceeding ), and
2. WHEREAS participating parties agree that entering into a Protective Agreement will
expedite the production of documents; will afford the necessary protection to valuable confidential
trade secret, and business information; will also afford protection to the participating 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 (as hereinafter defined) 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 of a 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
proprietary or confidential nature. Access to and review of Confidential Information shall be
strictly controlled by the terms of this Agreement.
(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 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.
(c)Persons Entitled to Review.
Access to Confidential Information shall be limited to counsel of the undersigned-
participating parties, employees, experts, agents or representatives of the undersigned parties, or
in the case of individual intervenors, the parties themselves, who have executed an Exhibit A to
this Agreement. Confidential Information shall not be disclosed to any person who is responsible
for the business decisions for any party in this Proceeding (or anyaffiliate(s) or related entities)
in the state of Idaho. As used in the preceding sentence, the term "business decisions" includes
without limitation, decisions regarding the offering of services to the public, the packaging of
such service and the pricing of such services. Such information will be clearly marked and
protected from unauthorized internal or public disclosure.
(d)Protective A!!reement
Confidential Information shall not be disclosed to any person who has not either signed
this Protective Agreement (legal counsel representing parties) or the form that is attached hereto
as Exhibit A and incorporated herein. Exhibit A requires 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. A validly executed Exhibit A
must contain the signatory s full name, permanent address, employer, job title, and an
affinnative statement that the signatory is not responsible for the business decisions for any party
in this Proceeding (or any affiliate(s) or related entities). Such Exhibit A shall be delivered to
counsel for the providing party before disclosure is made.
2. (a)Copies
PROTECTIVE AGREEMENT-
No copies or transcriptions of the Confidential Infonnation shall be made by the recipient
except as necessary to make the infonnation available to individuals who have executed an
Exhibit A to this Protective Agreement.
(b)Return of Confidential Information.
Upon request of the providing party, all original documents and copies of the
Confidential Infonnation shall be returned to the providing party within thirty (30) days after the
final settlement or conclusion of the Proceedings, including administrative or judicial review
thereof.
Unless otherwise ordered, Confidential Infonnation, including transcripts or 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 likewise, be
returned to counsel for the providing party within thirty (30) days after final settlement or
conclusion of the Proceedings, 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 Infonnation 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.
3. Non-Waiver ofObiection 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 obj ect
to its relevance or admissibility in any proceedings before this Commission.
4. Challen!!e to Confidentiality
(a)Initial Challen!!e
This Protective Agreement establishes a procedure for the expeditious handling of
sinformation 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 a stipulation. Resolution may include removing the confidential classifications
creating a non-confidential summary, refonnatting the infonnation, etc.
(b)Subsequent Challen!!e.
PROTECTIVE AGREEMENT-
(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 the providing partyto 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 Infonnation
shall be marked "CONFIDENTIAL-Subject to Attorney s Certificate of Confidentiality"
and shall not be examined by any person except under conditions set forth in this Agreement, if
applicable.
(c)In Camera Hearin!! 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 Infonnation (or that portion of the record
containing Confidential Information) shall be marked and treated as provided herein for
Confidential Information.
(d)Access to Record.
Access to sealed testimony, records, and infonnation 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 be taken, sealed portions of the record in these Proceedings may be
forwarded to any court of competent jurisdiction for the purposes of any 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.
Return.
Unless otherwise ordered, Confidential Infonnation, including transcripts of any depositions
to which a claim of confidentiality is made, shall remain under seal, shall continue to be subject
to the protective requirements of this Protective Agreement, and shall be returned to counsel for
PROTECTIVE AGREEMENT-
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 infonnation. The Petition shall be served upon the Commission and all parties to
the case. 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)Challen!!e Hearin!!
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.The transcript of such hearing shall be separately bound, segregated
sealed, and withheld from public inspection by any person not bound by the tenns 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 SS9-335 et seq.
).
Ifinfonnation is found
to be not exempt from disclosure, no party shall disclose such challenged material or use it in the
public record, or otherwise for at least five (5) business days unless the providing party 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 Protective Agreement from material
claimed to be confidential. Such relief may be sought from the Commission or a court
competent jurisdiction.
5. (a)Receipt Into Evidence
Provision is hereby made for receipt into evidence in these Proceedings 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 Protective
Agreement, it shall give reasonable prior notice of such intention to the providing party
and shall provide copies of the used Confidential Infonnation or substantive reference to
Confidential Information or substantive reference to Confidential Infonnation only to the
providing party, and such other parties, if any, who have executed this Protective
Agreement.
(2) One (1) copy of the used Confidential Infonnation or substantive reference to
Confidential Information described in Paragraph 5(a)(1) shall be placed in the sealed
record.
PROTECTIVE AGREEMENT~
the providing party within thirty (30) days after fmal settlement or conclusion of this matter
including administrative or judicial review thereof.
Use in Pleadin!!s.
Where references to Confidential Infonnation in the sealed record or with the custodian is
required in pleading, briefs, argument, or motions, it shall be by citation to the title or exhibit
number or some other description that will not disclose the substantive Confidential Infonnation
contained therein. Any use of or substantive reference to Confidential Information shall be
placed in a separate section of the pleading or brief and submitted to the Commission pursuant to
Paragraph 5 hereof. This sealed section shall be served only on counsel of record who have
signed this Protective Agreement or those who have executed the Exhibit A attached to this
Protective Agreement, and may, in turn, be disclosed by them only to individuals who have
likewise executed Exhibit A.
Summary of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential Infonnation referred to in any Decision or Order to be issued to the
public and the parties.
This Protective Agreement shall become effective on the date hereof.
DATED this CZ~~of ~2004.
c.,
::e~uLl
J. Mill
IDAHO PUBLIC UTILITJES COMMISSION STAFF
By:
. ~
bty Attorney General
/ /
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PROTECTIVE AGREEMENT-6
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated /f;~J/ l ~c?CJ , in this
docket and agree to be bound by the tenns and conditions of such Agreement.
Affirmative Statement ~!~-W~i.
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Employer or Firm
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Job Title .l"
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Pennanent Address t/'
Party
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PROTECTIVE AGREEMENT-
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated fLP\.rL.l Gv ;)--DD4-in this
docket and agree to be bound by the tenns and conditions of such Agreement.
Affirmative Statement LI\ Q\" J II! '2.-
Name
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Employer or
Job Title
Date
PROTECTIVE AGREEMENT -
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated fr'b(
. \ (p
J 2()O in this
docket and agree to be bound by the tenns and conditions of such Agreement.
Affmnative Statement J3 ..~v~
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Employer or Firm
1A/e~ \ Co\l\~~ ~s~A.-u.
Job Title
~2 W. W~!~A ~. J \?d\Permanent Address
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Party
l./J by 0 '-f
Date
PROTECTIVE AGREEMENT-
EXHIBIT A
I have reviewed the foregoing Protective Agreement dated lo 2DO4-in this
docket and agree to be bound by the tenns and conditions of such Agreement.
AffIrmative Statement
N,me
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1.. J~ \10 VL1C
Employer or Firm
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Job Title
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Permanent Address
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Party
4--\? -04-
Date
PROTECTIVE AGREEMENT-