20050706Protective agreement.pdf

Dean J. Miller
McDEVITT & MILLER LLP
420 West Bannock Street
O. Box 2564-83701
Boise, ill 83702
Tel: [phone]
Fax: [phone]
i oe(fYmcdevi tt -miller .com
FCE HIED
;; .
Ie- .----F
'-.
?nnc; Pf
. ....", .._-~ .'~...
.,. l
i(""flf' h."," IdP,tlU fJUoL iCI fLITIES COMHISSfOrl
Mary S. Hobson
STOEL RIVES LLP
101 South Capital Boulevard - Suite 1900
Boise, ill 83702
Tel: [phone]
Fax: [phone]
mshobson(fYstoel.com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF LEVEL 3
COMMUNICATIONS, LLC'S PETITION FOR
ARBITRATION PURSUANT TO SECTION
252(B) OF THE COMMUNICATIONS ACT
OF 1934, AS AMENDED BY THE
TELECOMMUNICATIONS ACT OF 1996,
AND THE APPLICABLE STATE LAWS FOR
RATES, TERMS, AND CONDITIONS OF
INTERCONNECTION WITH QWEST
CORPORATION
Case No. QWE-O5-
PROTECTIVE AGREEMENT
WHEREAS Qwest Corporation ("Qwest"), Level 3 Communications LLC
Level 3 "), and the Idaho Public Utilities Commission Staff ("Staff') (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
Proceedings ), and
PROTECTIVE AGREEMENT - Page
Boise-185262.l 0061273-00018
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
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 which might be provided during the course of the Proceedings
now therefore
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
(a)Confidential Information.
All documents, data, information, studies and other materials furnished pursuant
to any audit requests for information, subpoenas or other modes of discovery (formal or
informal), and including depositions, that are claimed in compliance with Commission
Rules of Procedure to be of a trade secret, proprietary or confidential nature (herein
referred to as "Confidential Information ) by the party or entity providing the information
by stamping the same with a designation indicating its trade secret, proprietary or
confidential nature. (Reference IDAP A 31.01.01.233
, "
Assertions that Discovered
Material is Protected from Public Inspections
).
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 participation in this proceeding, and shall keep
PROTECTIVE AGREEMENT - Page 2
Boise-185262.l 0061273-00018
the Confidential Information secure as a 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, and experts, agents or representatives of participating parties to this
arbitration (including Staff), who have executed an Exhibit "A" to this Agreement.
(d)Nondisclosure A2reement.
Confidential Information shall not be disclosed to any person who has not signed
a this Protective Agreement (i., legal counsel representing participating parties and
Staff) 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 shall contain the
signatory s full name, permanent address and employer. Such Exhibit A shall be
delivered to counsel for the providing party, before disclosure is made.
(e)Hi2hlv Sensitive Documents.
As to highly sensitive documents and information, the participating parties shall
have the right, at their option, to refuse to provide copies to counsel for other parties or to
their employees, experts, agents or representatives. Should the participating parties
refuse to provide copies, such documents shall be made available for inspection and
review by the participating parties' legal counsel who have executed this Protective
Agreement or an Exhibit "A" to this Protective Agreement at a place and time mutually
agreed upon by the parties. Where copies are not provided, the counsel reviewing the
Confidential Information may make limited notes regarding the Confidential Information
PROTECTNE AGREEMENT - Page
Boise-185262.1 0061273-00018
for reference purposes only. Such notes shall not constitute a verbatim or substantive
transcript of the Confidential Information. For purposes hereof, notes made pertaining to
or as the result of a review of Confidential Information shall be considered Confidential
Information and subject to the terms of this Protective Agreement.
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 executed in connection with this
matter. When copies are made, such copies will clearly reveal the confidential markings.
Nonwaiver 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.
Challen2e to Confidentiality.
(a)Initial Challen2e.
This Protective Agreement establishes a procedure for the expeditious handling of
information that a party claims is confidential. Should any party seek to challenge the
confidentiality of any information, they 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 nonconfidential summary, reformatting the
information, etc.
PROTECTIVE AGREEMENT - Page 4
Boise-185262.1 0061273-00018
(b)Subsequent Challen2e.
In the event that the parties cannot agree as to the character of the information
challenged, any party may petition the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission, all parties who have
signed a Protective Agreement to the case. The Petition shall designate with specificity
the document or material challenged and state the grounds upon which the subj ect
material are deemed to be non-confidential by the challenging party.
(c)Challen2e Hearin2.
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 executed in connection with this arbitration
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. To the extent
necessary, the record of the in camera bearing shall be marked "CONFIDENTIAL -
Subject to Protective Agreement dated " 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 Commission shall issue an Order determining whether any challenged
information or materials is not properly deemed to be exempt from public disclosure
pursuant to the Idaho Public Records Act (Idaho Code ~~ 9-335 et seq.
).
Ifinformation
is found to be not exempt from public disclosure, Staff or any party shall not disclose
such challenged material or use it in the public record for at least five (5) business days
unless the providing party consents to such conduct. This procedure enables the
PROTECTIVE AGREEMENT - Page 5
Boise-185262.10061273-00018
providing party to seek a stay or other relief from the Commissioner 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.
(a)Receipt Into Evidence.
The following provisions shall govern the receipt into evidence of materials
claimed to be Confidential Information
(1)
(2)
(b)
If a participating party intends to use Confidential Information or
to make substantive reference to Confidential Information supplied
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 Information or substantive
reference to Confidential Information only to the providing party
and such other parties, if any, who have executed this Protective
Agreement.
One (1) copy of the used Confidential Information or substantive
reference to Confidential Information described in paragraph
5(a)(1) shall be placed in the sealed record.
(3)Except as otherwise provided by law, 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 offering party.
Confidential Information placed in the sealed record shall be
maintained in accordance with the terms of this Protective
Agreement.
Seal.
While in the custody of the Commission, materials containing Confidential
Information shall be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'
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 Hearin2 and Transcripts.
Any Confidential Information that must be orally disclosed at a subsequent
hearing shall be offered at an in camera hearing, attended only by persons authorized to
PROTECTIVE AGREEMENT - Page 6
Boise-185262.l 0061273-00018
have access to the information under this Protective Agreement executed in connection
with the subject information. 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.
(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.
Sealed portions of the record in this proceeding 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.
Use in Pleadin2s.
The following provides the terms under which Confidential Information shall be
treated in pleadings: Where references to Confidential Information in the sealed record
or with the custodian is required in pleadings, briefs, argument, 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
PROTECTIVE AGREEMENT - Page 7
Boise-185262.10061273-00018
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 this Protective Agreement, and may, in turn, be disclosed by them only to
individuals who have likewise signed Exhibit "
Summary of Record.
If deemed necessary by the Commission, the providing party shall prepare a
written summary of the Confidential Information referred to in the Decision and Order to
be issued to the public and the parties.
Return.
(a)Return of Confidential Information.
Upon request of the providing party, all original documents and copies of the
Confidential Information shall be returned to the providing party within thirty (30) days
after the final settlement or conclusion of this matter.
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, likewise, be returned to counsel for the providing party within
thirty (30) days after final settlement or conclusion of this matter, 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.
PROTECTIVE AGREEMENT - Page 8
Boise-185262.10061273-00018
(b)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 the providing party, be either returned to the providing party or, at the option
of the recipient, destroyed by shredding.
This Protective Agreement shall become effective on the date hereof.
DATED at Boise, Idaho this If-day of July, 2005.
By:/s/
Dean J. Miller
QWEST CORPORATION
By:
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By: /s/
Weld~n S~tz
PROTECTIVE AGREEMENT - Page 9
Boise-185262.10061273-00018
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated in this
arbitration and agree to be bound by the terms and conditions of such Agreement.
Name
Residence Address
Employer or Firm
Business Address
Party
Date
Protective Agreement-Exhibit A
Boise-185262.1 0061273-00018