20070716Protective Agreement.pdf

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Mary S, Hobson (ISB. No, 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mary hobson(fYqwest com
Attol11ey for Qwest Corporation
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Molly O'Leary (lSB No, 4996)
RICHARDSON & O'LEARY , PLLC
515 North 27th Street
O. Box 7218
Boise, Idaho 83707
Tel: [phone]
molly(~,richardsonandoleary .com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INc.
Complainant Case No. QWE-06-
PROTECTIVE AGREEMENT
QWEST CORPORATION
Respondent.
WHEREAS, Qwest Corporation ("Qwest") and AT&T Communications of the
Mountain States , Inc.AT&T"
).
hereinafter jointly referred to as "Participating
Paliies ) 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
WHEREAS, the Staff of the Idaho Public Utilities Commission ("Staff') may
need to review' certain information considered by the Paliicipating Patiies to be a trade
secret, privileged or confidential, and
PROTECTIVE AGREEMENT - Page I
WHEREAS, the Palticipating Parties and Staff agree that entering into a
Protective Agreement wil1 expedite the production of documents; will afford the
necessary protection to valuable and confidential, trade secret, and business information;
wil1 establish clear parameter for use of Confidentiallnfol111ation and thereby afford
necessary protection to the employees and/or representatives of the Patticipating Parties
and Sta'ffwho might, during the course of the Proceedings, review the infol111ation and
subsequently be requested to reveal its contents; and will protect the use of Confidential
Information provided during the course of the Proceedings, now therefore
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
Confidential Information.
All documents, data, inf0l111ation, 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
in good faith and in compliance with Commission Rules of Procedure to
be a trade secret, proprietary or confidential in nature (hereinafter refelTed
to as "Confidential Information ) by the party or entity providing the
inforn1ation by stamping the first page and individual pages of the
document with a designation indicating it trade secret, proprietary or
confidential nature. (Reference IDAPA 31.01.01.233
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Asseltions that
Discovered MateriaJ is Protected from Public Inspections ). Access to
and review of Confidential Information shall be strictly controlled by
the tel111S of this Agreement.
Use of Confidential Information.
All persons who may be entitled to review, or who are afforded access to
any Confidential Information by reason ofthis Agreement shall neither use nor
disclose the Confidential Information for pUlvoses of business or competition, or
any purpose other than the purpose of preparation for and patticipation in this
PROTECTIVE AGREEMENT - Page 2
proceeding, and shall keep the Confidential Information secure as a trade secret
confidential or proprietary information and in accordance with the purposes and
intent of this Agreement.
Persons Entitled to Review
No Confidential Information will be made available to anyone other than
Commissioners, Staff, and counsel for the Patticipating Palties for this
proceeding, including attomeys' administrative staff such as paralegals.
However, access to any Confidential Information may be authorized by counseL
solely for the pUlvoses ofthis proceeding, to those persons designated by the
Participating Parties as their experts in this matter. No such expeli may be
an officer, director, direct employee, major shareholder, or principal of any patiy
or any competitor of any party (unless this restriction is waived by the patiy
asserting confidentiality). Any dispute conceming persons entitled to access
Confidential Information must be brought before Idaho Public Utilities
Commission for resolution.
Nondisclosure A2reement.
Before being allowed access to any Confidential Infol111ation designated
for this docket, each counselor expert must agree to comply with and be bound
by this Agreement on the fol111 of Exhi bi t A (counsel and administrati ve staff) or
B (expert) attached to this Agreement. Counsel for the patty seeking access to the
Confidential Information must deliver to counsel for the patty producing
Confidential Information a copy of each signed agreement which must show each
signatory s full name, permanent address, the patty with whom the signatory is
associated and, in the case of expetis, the employer (including the expeti'
position and responsibilities). The party seeking access must also send a copy of
the agreement to the Commission and, in the case of expelis, the patty providing
Confidential Information shall complete its pOliion and file it with the
Commission or waive objection as described in Exhibit B.
PROTECTIVE AGREEMENT - Page
Access to Confidential Information.
Copies of documents designated confidential under this Agreement will be
provided as required under IDAP A 31.01.01.221. Requests for special provisions
for inspection, dissemination or use of confidential documents must be submitted
to the Commission if not agreed to by the patties. The patties must not distribute
copies of Confidential Infol111ation to, and they must not discuss the contents of
confidential documents with, any person not bound by this Agreement. Persons
to whom copies of documents are provided pursuant to this Agreement walTant by
signing the confidentiality agreement that they will exercise all reasonable
diligence to maintain the documents consistent with the claim of confidentiality.
Copies
No copies or transcriptions ofthe Confidential Infom1ation shall be made
by the recipient except as necessary to make the infol111ation available to
individuals who have executed an Exhibit A" or "B" to this Agreement. When
copies are made, such copies will clearly reveal the confidential markings.
Use of Confidential Information in this Proceedin2:
If reference is to be made to any Confidential Information by counselor
persons afforded access to this information during any palt of this proceeding
including, but not limited to, motions, briefs, arguments, direct testimony, cross-
examination, rebuttal and proposed offers of proof, any public reference (i., any
reference that will not be placed in a sealed pOltion of the record) shall be either
solely by title or by exhibit reference. Any other written reference shall be
segregated and marked "Confidential Information " and access to it shall be given
solely to persons who are authorized access to the infom1ation under this
Agreement. References to the Confidential Information must be withheld from
inspection by any person not bound by the terms of this Agreement.
Receipt Into Evidence.
PROTECTIVE AGREEMENT - Page 4
The following provisions shall govern the receipt into evidence of
materials claimed to be Confidential Information:
(3)
(I)If a pmticipating patty 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 patty 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 one of the
exhibits to this Protective Agreement.
(2)One (I) copy of the used Confidential Information or substantive
reference to Confidential Information described in this paragraph
shall be placed in the sealed record.
Except as otherwise provided by law, only one (I) 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 shalJ be
maintained in accordance with the tel111S of this Protective
Agreement.
(4 )In oral testimony, cross-examination or argument, public
references to Confidential Infol111ation must be on such prior
notice as is feasible to the affected palty and the Commission.
Unless altel11ative arrangements exist to protect the Confidential
Information, there must be minimum sufficient notice to permit the
Commission an oppOliunity to clear the hearing room of persons
not bound by this Agreement or take such other action as is
appropriate in the circumstances.
Seal
While in the custody of the Commission, materials containing
Confidential Information shall be marked "CONFIDENTIAL - SUBJECT
TO ATTORNEY'S CERTIFICATE OF CONFIDENTIALITY" and shalJ
not be examined by any person except under the conditions set fOlth in
this Agreement, if applicable.
/n Camera Hearing and Transcripts.
PROTECTIVE AGREEMENT - Page 5
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 have access to the infol111ation under this
Protective Agreement executed in connection with the subject
infol111ation. Similarly, any transcription of any examination or other
reference to Confidential Information (or that pOltion of the record
containing Confidential Infol111ation) shall be marked and treated as
provided herein for Confidential Information.
Access to Record.
Access to sealed testimony, records , and information shall be limited to
the Commission and persons who have signed an exhibit as provided in
this Protective Agreement, unless such infom1ation is released from the
restrictions of this Agreement either through agreement of the patties or
aft~r notice to the patties and hearing, pursuant to the order of the
Commission and/or the final order of a COUlt having final jurisdiction.
Appeal.
Sealed pOltions of the record in this proceeding may be forwarded to any
COUlt of competent jurisdiction for purposes of an appeal, but under seal as
designated herein for the information and use of the COUlt. If a pOliion of
the record is forwarded to a COUlt under seal for the pUlvoses of an appeal
the providing patty shall be notified which pOltion of the sealed record has
been designated by the appealing party as necessary to the record on
appeal.
Objection to Admissibility or Confidentiality
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 pmty to object to its relevance or admissibility in any proceedings
PROTECTIVE AGREEMENT - Page 6
before this Commission. The following procedures apply to a challenge to
confidentiality.
Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious
handling ofinf0J111ation that a patty claims is confidential. Should any
patty seek to challenge the confidentiality of any information, they shall
first contact counsel for the providing patty and attempt to resolve any
difference by stipulation. Resolution may include removing the
confidential classifications, creating a non-confidential summary,
reformatting the information, etc.
Subsequent Challenge.
In the event that the parties cannot agree as to the character of the
inf0l111ation challenged, any party may petition the Commission to rule
upon the disputed infol111ation. The Petition shall be served upon the
Commission, all patties who have signed a Protective Agreement to the
case. The Petition shall designate with specificity the document or
materials challenged and state the grounds upon which the subject material
is deemed to be non-confidential by the challenging party.
Challenge Hearing.
The challenging patty shall request that the Commission conduct an
camera proceeding where only those persons duly authorized to have
access to such challenged materials under this Protective Agreement
executed in connection with this case shall be present. This hearing shall
be commenced no earlier than five (5) business days after serving the
Petition on the providing patty and the Commission. To the extent
necessary, the record of the in camera hearing 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.
Determina tion.
The Commission shall issue an order determining whether any challenged
infol111ation 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.). If information is found to be not exempt from public disclosure
Staff or any patty shall not disclose such challenged material or use it in
the public record for at least five (5) business days unless the providing
patty consents to such conduct. This procedure enables the providing
party to seek a stay or other relief from the Commissioner s order
PROTECTIVE AGREEMENT - Page 7
removing the restrictions of this Agreement from material claimed to be
confidential. Such relief may be sought from the Commission or a
COUlt of competent jurisdiction.
Notice of Compelled Production In Other Jurisdictions.
If a signatory to this protective Agreement is compelled to produce confidential
documents in any regulatory or judicial proceeding by the body conducting the
proceeding, the signatory must provide notice to the palty that provided the
confidential information. Such confidential information must not be produced for
at least five days following notice, to permit the party that provided such
inforn1ation an oPPOltunity to defend the confidential nature ofthe material before
the regulatory 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.
10.Return of Confidential Information.
Upon request ofthe providing patty, all original documents and copies of the
Confidential Information shall be retul11ed to the providing party within thirty
(30) days after the final settlement or conclusion ofthis 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 retul11ed to counsel for the providing
party within thitty (30) days after final settlement or conclusion ofthis matter
including administrative or judicial review thereof. After retum of documents
pursuant to this paragraph, and upon request, a written receipt verifying return
shall be provided by counsel.
11.Return of Notes.
PROTECTIVE AGREEMENT - Page 8
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 pmty, be either returned to the providing
patty or, at the option ofthe recipient, destroyed by shredding.
This Protective Agreement shall become effective on the date hereof.
u-+h
DATED at Boise, Idaho this i"./ day of ttHie, 2007.
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AT&T COMMUNICATIONS OF THE MOUNTAIN STATES, INC.
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By: !~\()';i \'lik..:cY.
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PROTECTIVE AGREEMENT - Page 9
EXHIBIT A (ATTORNEY AGREEMENT)
AGREEMENT CONCERNING CONFIDENTIAL INFORMATION IN AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES , INc. v. QWEST
CORPORATION
IDAHO PUBLIC UTILITIES COMMISSION CASE NO. QWE- T 06-
, as attoll1ey inthis proceeding for (party to
this proceeding) acknowledge I have reviewed the foregoing Protective Agreement dated
in the above referenced case, fully understand its terms and conditions and
agree to comply with and be bound by the terms and conditions of said agreement.
Signature Date
Address
Protective Agreement-
EXHIBIT B (EXPERT AGREEMENT)
AGREEMENT CONCERNING CONFIDENTIAL INFORMATION IN AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INc. v. QWEST
CORPORATION
IDAHO PUBLIC UTILITIES COMMISSION CASE NO. QWE- T 06-
as expert
witness in this proceeding for (a party to
this proceeding) hereby acknowledge I have reviewed the foregoing ProtectiveAgreement dated __in the above referenced c(~se.. fully understand its tel111S and
conditions and agree to comply with and be bound by the tenns and conditions of said
agreement.
Signature Date
Employer
Position and ResponsibilitiesAddress
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The following portion is to be completed by the responding party and filed with the
Commission within 10 days of receipt; failure to do so will constitute a waiver and the
above-named person will be deemed an expert having access to Confidentiallnfonnation
under the terms and conditions of the protective agreement.
No objection.
Objection. The responding party objects to the above-named expert
having access to Confidentiallnfonnation. The objecting party shaH file a motion setting
forth the basis for objection and asking exclusion ofthe expert from access to
Confidential Information.
Signature Date
PROTECTIVE AGREEMENT - Page