20090421Protective Agreement.pdf

Mar S. Hobson (ISB. No. 2142)
999 Mai Suite 1103
Boise,ID 83702
Tel: [phone]
mar.ho bsonrÐqwest.com
(:; E f
2009 APR 2 l Pt1 3: 53
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, WA 98191
Tel: [phone]
adam.sherr~qwest.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN TH MATTER OF QWEST
CORPORA TIONS PETITION FOR
APPROVAL OF NON-IMP AIRED WIRE
CENTER LISTS PURSUANT TO THE
TRIENNIAL REVIEW REMAD ORDER
Case No. QWE-T-a8-07
PROTECTIVE AGREEMENT
WHREAS, Qwest Corporation c'Qesf), and any intervenig pares, (hereinafer with
Qwest jointly referred to as "Parcipatig Pares) anticipate that they may make available for
review, or make requests to provide, certain inormation considered by its custodian to be of a
trade secret, privileged, or confidential natue in the above-referenced docket (hereinafer
'Proceedigs), and
WHREAS, the Staf of the Idao Public Utilities Commssion c'Stamay need to
review cert inormation considered by the Paricipating Pares to be a trade secret, privileged
or confdential, and
Wire Center Docket Protective Agreement
- 1 -
WHREAS, the Parcipating Paries and Staf agree that enterig into a Protective
Agreement will expedite the production of documents; will aford the necessar .protection to
valuable and confdential, trade secret, and business inormation; will establish clear parameter
for use of Confdential Information and thereby.afford necessar protection to the employees
and/or representatives of the Parcipatig Pares and Staf who might, durg the course of the
Proceedings, review the inormation and subsequently be requested to reveal its contents; and
will protect the use of Confdential Inormation provided during the course of the Proceedings,
now therefore,
IT is HEREBY STIPULATED AND AGREED AS FOLLOWS:
Wire Center Docket Protective Agreement
- 2 -
Confdential Infoiiation secure as confdential or proprietary inormation and in accordance
with the puroses, intent and reqUiements of ths Agreement.
(C) Persons Entitled to Review. Each par that receives Confdential Inormation
pursuant to this Agreement must execute the Nondisclosure Agreement described in section (D)
immediately below and limit access to such Confdential Inormation to (l) attorneys employed
or retaed by the par in the Wire Center Docket and the attorneys' staf; (2) experts,
consultants and advisors who need access to the material to assist the par in the Wire Center
Docket; (3) only those employees of the pary who are directly involved in the Wire Center
Docket, provided that counsel for the par represents that no such employee is engaged in the
sale or marketing of that par's products or services. In addition, access to Confdential
Inormation may be provided to Commssioners. Disclosure of Confdential Information and
Highly Confdential Inormation to members of Sta and consultants employed Staf shall be
under the same terms and conditions as described herein for Parcipating Pares.
(D) Nondisclosure Agreement. Confdential Information shall not
be disclosed to any
person, except persons who are described in section 1 ( c) above and who have signed a
Nondisclosure Agreement in the form that is attched hereto and incorporated herein as Exhibit
'í\' Cour reporters sball also be requied to sign an Exhbit"A'and comply with the terms of the
Nondisclosure Agreement.
The Nondisclosure Agreement (Exhbit''A) requies the person(s) to whom
disclosure is to be made to read a copy of ths Protective Agreement and to certify in wrting that
they have reviewed the same and have consented to be bound by its terms. In each instace,
Exhbit''A'shal contan the signatory's full name, employer, business address and the name of
the
Paricipating Pary with whom the signatory is associated. Such agreement shall be delivered to
counsel for the providing par before ,disclosure is made, and if no objection thereto is registered
Wire Center Docket Protective Agreement - 3 -
to the Commssion with thee (3) business days, then disclosure shal follow. An attorney who
ma.1ces Confidentii:l Tnformation avaiable to any person lìsted in subsection (c) above shall be
responsible for havig each such person execute an original of Exhbit'A' and a copy of all such
signed Exhbit N.s shall be circulated to all other counsel of record promptly afer execution.
2. (A) Notes. Limited notes regardig Confdential Inormation may be taken by
counsel and experts for the express purose of preparg pleadings, cross-examations, briefs,
motions and argument in connection with ths proceedig, or in the case of persons designated in
paragraph i (c) of ths Protective Agreement, to prepare for parcipation in ths proceedig.
Such notes shall then be treated as Confdential Inormation for puroses of ths Agreement, andJ .
shall be destroyed after the final settlement or c~nclusion of the Wire Center Docket in
accordance with subsection 2(b) below.
(B) Retu. All notes, to the extent they contan Confdential Information and are
pIotected by the attorney-client privilege or the work product doctrne, shall be destroyed afer
the final settlement or conclusion of the Wire Center Docket. The par destroying such
Confdential Information shall advise the providing par of that fact withn a reasonable time
from the date of destrction.
3. Highly Confidential Information: Any person, whether a pary or non-par, may
designate certai competitively sensitive Confdential Inormation as''Hghy Confdential
Informatiorl'if it determnes, in good faith that it would be competitively disadvantaged by the
disclosure of such information to its competitors. Highly Confdential Inormation includes, but
is not limited to, documents, pleadigs, briefs and appropriate portions of deposition transcripts,
that contan information regarding the market share of, number of access lines served by, or
number of customers receiving a specified type of service from. a paricular provider or other
information th~it relates to marketing, business plang or business strategies.
Wire Center Docket Protective Agreement. .- 4 -
Pares must scrutinze carefuy responsive documents and inormation and limt their
designations as Hig.liy Confdential Inormation to inormation that trly might impose a serious
business risk if disseminated without the heightened protections provided in ths section. The
first page and individual pages of a document determined in good faith to include Highly .
Confdential Information must be marked by a stamp that reads:
'HIGHL Y CONFIDENTIAbE RESTRICTED PER PROTECTIVE AGREEMENT IN
DOCKET NO. QWE-T-08-0T'
Placing a "Highy Confdential' stamp on the fist page of a document indicates only that
one or more pages contan Highly Confdential Information and will not serve to protect the
entire contents of a multi-page document. Each page that contains Highly Confdential
Information must be marked separately to indicate Highly Confdential Inormation, even where
that information has been redacted. The unedacted versions of each page contag Highly
Confdential Information, and provided under seal, should be submitted on paper distinct in color
from non-confdential information and''Confdential Inormatìorl'described in section i of
this
Protective Agreement.
Paries seekig disclosure of Highly Confdential Information must designate the
person(s) to whom they would like the Highly Confdential Information disclosed in advance of
disclosure by the providing par. Such designation may occur though the submission of
Exhbit''B:' Paries seeking disclosure of Highy Confdential Information shall not designate
more than (1) a reasonable number of in-house attorneys who have direct responsibility for
matt~rs relatig to Highy Confdential Information; (2) five in-house experts; and (3) a
reasonable number of outside counsel and outside experts to review materials marked as"Highy
Confidential:' Disclosure of Highy Confdential Information to Staff members shall be limited to
persons to whom disclosure is necessar. The Exhibit''B" also shall describe in detail the duties
. Wire Center Docket Protective Agreement - 5 -
or responsibilities of the person being designated to see Highy Confdential Inormation and the
person's role in the proceedig. Highly Confdential Information may not be disclosed to persons
engaged in strategic or competitive decision makg for any par, includig the sale or
marketing of products or services on behalf of any pary.
Any par providing either Confidential Information or Highly Confdential Inormation
ma.y object to the designation of any individual as a person who may review Confdential
Inormation and/or Highly Confidential Inormation. Such objection shall be made in wrting to
.counsel submittng the challenged individual's Exhbit''A'or''B'with thee (3) business days afer
receiving the challenged individual's signed Exhbit"!t'or''B'. Any such objection must
demonstrate good cause to exclude the challenged individual from the review of Confdential
Inormation and/or Highly Confdential Information. Written response to any objection shall be
made withn ttee (3) business days afer receipt of an objection. If, afer receiving a Wrtten
response to a pars objection, the objecting par stil objects to the disclosure of either
Confidential Information or Highly Confdential Information to the challenged individua, the
Commission shall determe whether the Confdential Information or Highy Confdential
Inormation must be disclosed to the challenged individual.
Copies of Highly Confdential Inoriation may be provided to the in-house attorneys,
outside counsel and outside experts who have signed Exhbit "B". The in-house experts who
have signed Exhbit "B" may inspect, review and make notes from the in-house attorney's copies
of Highy Confdential Inormation.
Persons authorized to review the Highly Confdential Inormation will maitai the .
documents and any notes reflecting their contents in a secure location to which only designated
counsel and experts have access. No additional copies will be made, except for use durng
heargs and then such disclosure and copies shall be subje~t to the provisions of Section 6. Any
Wire Center Docket Protective Agreement - '6 -
testimony or exhbits prepared that reflect Highly Confdential Information must be maintained
in the sècure location until removed to the hearg room for production under seal and under
circumstances that will ensure contiued protection from disclosure to persons not entitled to
review Highly Confdential Information.
Unless specifically addressed in ths section, all other sections of ths Protective
Agreement applicable to Confdential Information also apply to Highly Confdential
Information.
4. Objections to Admissibility. The fushig of any document, data, study or other
materials pursuant to ths Protective Agreement shall in no way limit the right of the providing
pary to object to its relevance or admissibility iIl proceedings before ths Commission.
5. Small Company Exemption. Notwthstading the restrctions in sections i and 3
applicable to persons who may access Confdential Information and/or Highly Confdential
Inormation, a Smal Company may designate any employee or in-house expert to review
Confidential Information and/or Highy Confdential Information if the producing par, upon
request, gives prior wrtten authorization for that person to review Confdential Information
and/or Highly Confdential Information. If the producing par refuses to give such wrtten
authorization, the reviewing par may, for good cause shown, request an order from the
Commission allowig a prohibited person(s) to review Confdential Inormation and/or Highly -
Confdential Information. The producing par shall be given the opportity to respond to the
Small Company's request before an order is issued. "Sm~l Company" means a pary with fewer
than 5000 employees, including the employees of afliates' U.S. ILEC, CLEC, and IXC
operations with a common holdig company.
6. Challenge to Confdentiality. this Agreement establishes a procedure for the expeditious
handling of inormation that a par clais is Confdential or Highly ConfdentiaL. It shall not be
Wire Center Docket Protective Agreement - 7 -
constred as an agreement or rug on the confdentiality of any document. Any par may
challenge the characterization of ai"'Y information, document, data or study claied by the
providing par to be confdential in the followig maner:
(A) A pary seekig to challenge the confdentiality of any materials pursuant
to ths Agreement shall first contact counel for the providig par and attempt to resolve any
dierences by stipulation;
(B) In the event that the paries canot agree as to the character of
the
information challenged, any par challenging the confidentiality shall do so by appropriate
'pleading. Ths pleading shall:
(1) Designate the document, trancript or other material challenged in
a maner that will specifically isolate the challenged material from
other material claimed as confidential; and
(2) State with specificity the grounds upon which the documents~
trancript or other material are deemed to be non-confdential by
the challenging par.
(C) A ruing on the confdentiality of
the challenged inormation, docUment, data or
study shall be made by the Commssion afer proceedings in camera, which shall be conducted
under circumstances such that only those persons duly authorized hereunder to have access to
such confdential materials shall be present. Ths hearng shall commence no earlier than five (5)
business days afer service on the providing pary of the pleading requied by subsection 5
(b)
above.
(D) The record of said in camera hearng shall be marked"CONFIDENTIA-
SUBJECT TO PROTECTIVE AGREEMENT IN DOCKET NO. QWE-T-08-0T' Cour reporter
notes of such hearg shall be transcribed only upon agreement by the paries or order of
the
Wire Center Docket Protective Agreement - 8 -
Comm;ssion and in that event shall be separately bound, segregated, sealed, and witheld from
inspection by any person not bound by t.lie terms of
ths Protective Agreement.
(E) In the event that the Commssion rues that any inormation, document,
data or
study should be removed from the restrictions imposed by ths Agreement, no par shall
disclose such inormation, document, data or study or use it in the public record for five (5)
business days uness authorized by the providig par to do so. The provisions ofthš
subsection are intended to enable the providig par to seek a stay
or other relief from an order
removig the restrction of ths Agreement from materials claied by the providing par to be
confdentiaL.
7. (A) Receipt into Evidence. Provision is hereby made for receipt into evidence in
ths
proceeding materials claimed to be confdential in the following maner:
(1) Prior to the use of or substative reference to any Confdential
Information, the pares intending to use such information
shall make that
intention known to the providing par.
(2) The requesting par and the providing pary shall make a good-faith
effort to reach an agreement so the Confdential Information can be used
in a maner that will not reveal its trade secret, confdential or proprietar
natue.
(3) If such efforts fail, the providing par shall separately identify'which
. portions, if any, of the documents to be offered or referenced shall be
. placed in a sealed record.
(4) Only one (1) copy of the documents designated by the providing par to
be placed in a sealed record shall be made.
(5) The copy of
the documents to be placed in the sealed record shall be
tendered by counsel for the providing par to the Commssion, and
maintained in accordance with the terms of this Agreement.
(B) Seal. Whle in the custody of the Commssion, materials containg
Confdential Information shall be marked"CONFIDENTIAL-SUBÆCT TO PROTECTIVE
AGREEMENT IN DOCKET NO. QWE-T-08-0Tand Highly Confdential Information shall be-
marked''HGHL Y CONFIDENTIAb-E RESTRICTED PER PROTECTIVE AGREEMENT. .
Wire Center Docket Protective Agreement - 9 -
IN DOCKET NO. QWE-T-08-0Tand shall not be examined by any person except under the
conditions set fort in ths Agreement.
(C) In Camera Hearng. Any Confdential Information or Highly Confdential
Information that must be orally disclosed to be placed in the sealed record in ths proceeding
shall be offered in an in camera hearng, attended only by persons authorized to have access to
the inormation under ths Agreement. Similarly, any cross-examation on or substantive
reference to Confdential InfoIIation or Highy Confdential Inormation (or that porton of the
record containg Confidential Information or Highly Confdential Information or references. '-
thereto) shall be received in an in camera hearng, and shall be marked and treated as provided
herein.
(D) Access to Record. Access to sealed testimony, records and information shall be
limited to the Commssioners and persons who are entitled to review Confdential Inormation or
Highly Confdential Information pursuant to subsection l(c) above and have signed an Exhbit'A'
or"B: uness such inormation is released from the restrictions of ths Agreement either though
agreement of the Paricipating Paries or afer notice to the pares and hearing, pursuat to the .
order of the Commission and/or fial order of a cour havig final jursdiction.
(E) Appeal/Subsequent Proceedings. Sealed portions of the record in ths proceeding
may be forwarded to any cour of competent jursdictiori for puroses of an appeal or to the FCC,
but under seal as designated herein for the information and use of the cour or the FCC. If a
porton of the record is forwarded to a cour or the FCC, the providing par shall be notified
which portion of the sealed recörd has been designated by the appealing par as necessar to the
record on appeal or for use at the FCC.
(F) Retu. Unless otherwse ordered, Confdential Inormation and Highy
Confdential Information, includig transcripts of any depositions to which a clai of
Wire Center Docket Protective Agreement
- 10 -
confdentiality is made, shal remain under seal, shall contiue to be subject to the protective
requiements of ths Agreement, and shall, at the proViding par1s discretion, be retued to
counsel for the providing par, or destroyed by the receivig pary, with th (30) days afer
fial settlement or conclusion of the Wire Center Docket. If the providing par elects to have
Confdential Information or Highly Confdential Inormation destroyed rather than retued,
counsel for the receiving par shall verify in writing that the material has in fact been destroyed.
8. Use in Pleadings. Where references' to Confdential Inormation or Hìghly Confdential
Information in the sealed record or with the providing par is requied in pleadings, briefs,
arguments or motìons (except as provided in section 6), it shall be by citatioIl of title or exhbit
number or some other description that will not disclose the substantive Confdential Inormation
or Highly Confdential Information contained therein. Any use of or substative references to
Confdential Information or Hìghly Confdential Information shall be placed in a separate section
of the pleading or brief and submitted to the Commssion under seaL. This sealed section shall be
served only on counsel of record and paries of record who have signed the Nondisclosure
Agreement set fort in Exhbits''A'or''B'. Al of the re_strctions afforded by ths Protective
Agreement apply to materials prepared and distrbuted under ths section.
9. Sumar of Record. If deemed necessar by the Commssion, the providing par shall
prepare a wrtten sumar of the Confdential Information or Highly Confdential Information
referred to in the Commission's order to be placed on the public record.
10. The provisions of ths Agreement are specifcally intended to apply to all data,
documents, studies, and other matenal designated as Confdential or Highly Confidential by any
par to Docket No. QWE-T-08-07. The provisions are also intended to apply to all data,
documents, studies and other material designated as confdential or highly confdential by any
Wire Center Docket Protectìve Agreement
- 11 -'
FEB 23 2000 18: 30 FR IDAHO PUBL I CLAW 208 385 8081 TO 93343762 1-. Ide:
non~pary that provides such material in response to data requests in this docket, whether it is
provided voluntaly or puruant to subpoena.
II. This Protective Agreement shall continue in force and effect after ths Docket is closed.
DATED at Boise, Idaho this _ day of July, 200S.
QWEST CORPORATIONBy: Isf ~c,
Mar S. Hobs
Its attrney
-- --
IDAHO PUBLIC UTILITIES COMMISSION 8T AFFBy: ISIO~
~e~ e4~~-b~
Its attorney
By: lsi
Date
By: lsI
Date
Wire Center Docket Protective Agreement
~ 12-
** TOTAL PAGE. 02 **
non-par that provides such material in response to data requests in ths docket, whether it is
provided voluntary or pursuant to subpoena.
11. Th Protective Agreement shal contiue in force and effect afer ths Docket is closed.
DATED at Boise, Idaho this _ day of July, 2008.
QWEST CORPORATION
By: lsi
Mar S. Hobson
Its attorney
IDAHO PUBLIC UTILITIES COMMSSION STAFF.(J~By: lsi V7W6~ ej.~W.~M~
Its attorney
By: lsi
Date
By: lsi
Date
Wire Center Docket Protective Agreement
- 12 -
DOCKET NO. QWE-T-08-07
EXHIT'~'
CONFIDENTIA INORMTION'
I have read the foregoing Protective Agreement in Docket No. QWE-T-08-07
and agree to be bound by the terms and conditions of ths Protective Agreement.
~-e (",'ái-ik
Name (Type or Prit)
tlUL
Employer or Fir
Job Title and Job Description
Business Address
Par Represented
SiU:~Ci
'1/2; L 0$
Date Signed'
Wire Center Docket Protective Agreement
- 13 -
EXHIT'B'
HIGHLY CONFIDENTIA INFORMTION
I have read the foregoing Protective Agreement, in Docket No. QWE-T-08-07
and agree to be bound by the terms and conditions of ths Agreement.
Joe (."i&~
N are (Type or Prit)
I-PU¿
Employer or Fir
Job Title and Job Description
Business Address
Par Represented
71'2Ilci£ .
Date Sign~d '
Wire Center Docket Protective Agreement - 14-
DOCKET NO. QWE-T-08-07
EXHIBIT ''A'
CONFIDENTIAL INFORMATION
I have read the foregoing Protective Agreement in Docket No. QWE-T-08-07
and agree to be bound by the terms and conditions of this Protective Agreement.
¡¿lj,Ct~Ie. iJOllI
are (Type or Print)
~1:daj1() ?¿¡d-.
Employer or Firm
-r/et.ljJJl1UttuCl5~1 ¿Job Title and Job Description d
~'/ h).W#tdu? !sISe'B siness Address
lJUG :Sltl~~
Par Represented
¿/ - f- ()~
Date Signed
Wire Center Docket Protective Agreement
- 13 -
EXHIBIT"B'
HIGHL Y CONFIDENTIAL INFORMATION
I have read the foregoing Protective Agreement, in Docket No. QWE- T -08-07
and agree to be bound by the terms and conditions of this Agreement.
Co. 10 Ie E' t- )/Name (Type or Print)
IdaJQ ::aL.
Employer or Firm
41;) LJ. tJg¡)~ &St:
Business Address
i fJ¿, sb ßl
Pary Represented
1£-41Date Signed
Wire Center Docket Protective Agreement
- 14 -
Qwest
421 Southwest Oak Street
Suite 810
Portland, Oregon 97204
Telephone: 50~242-5420
Facsimile: 503-242-8589
e-mail: carla.butle~qwest.com
Carla M. Butler
Lead Paralegal
Michel Singer-Nelson
360networks (USA) inc
867 Coal Creek Circle, Suite 160
Louisvile, CO 80027
RE(;!Ef\JF~
'ìftfiQ ip. 'R. - Q i. M. 8- 09.b~""",- -H, .J kr1 - ,_ __
Qweste
Spirit of Servicee
April 7, 2009
RE: Idaho Case No. QWE-T-08-07
In the Matter of Qwest Corporations' Petition for Approval of Non-Impaied Wire Center
Lists Pursuat to the Triennal Review Remand Order
Dear Ms. Singer-Nelson:
Enclosed please find signed Exhbit "A" and Exhbit "B" pages to the Protective
Agreement in the above entitled case, for Qwest employees Rachel Torrence, Renee
Albersheim and Candace Mowers.
If you have any questions, please contact Mr. Alex Duare at [phone].
s(ie:i:, ~C~
Lead Paralegal
Enclosures
cc: Weldon Stutzan, Idaho Public Utilties Commssion
DOCKET NO. QWE- T -08-07
EXHIT "A"
CONFIDENTIA INORMTION
I have read the foregoing Protective Agreement in Docket No. QWE-T-08-07
and agree to be bound by the term and conditions of this Protective Agreement.
-~ kiDr 11Q.Name (Type or 'nt)
fi~~r F~cr
fÀre ei
700 ù\. "1lh~cU kt
b tthe; j Ú). ~o,io
Business Address
tQ ~t9 . &ialPar Rep ented
~ l~1' D1
Date Signed
Wire Center Docket Protective Agreement
- 13 -
EXHIBIT "B"
HIGHLY CONFIDENTIA INORMATION
I have read the foregoing Protective Agreement, in Docket No. QWE-T-08-07
and agree to be bound by the terms and conditions of this Agreement.
Kadiæ I JOVYWC(
Name (Type or rit)
Qwæo-l Co~
Employer or Fir
Cìvedef e - ~ltt
100 W. fvhn~ròÂ kve
G\~l Colo W120.
Business Address
&~6i:)t ON~OY
Par Represented
~ltJl. Oq
Date Signed
Wire Center Docket Protective Agreement
- 14 -
DOCKET NO. QWE-T-08-07
EXHIBIT "A"
CONFIDENTIAL INFORMTION
I have read the foregoing Protective Agreement in Docket No. QWE-T-08-07
and agree to be bound by the terms and conditions of this Protective Agreement.
QCL~Cl~ ~. lIOI Ùe rs
Name (Type or Prit) ~
D.\Ò~~~
Employer or Firm
S\o\; \\&~DnQk-
Job Title and Job Description
\ ~ a \ ~~\ \ \ D, ~ ~ C\ ~~ ) 4- r~\ \=1.
-- E:'í \Ì en" )
Business Address
a.\W4~
Pary Represented
Ó)Öllc
Date Signed
Wire Center Docket Protective Agreement
- 13 -
EXHIBIT "B"
HIGHLY CONFIDENTIAL INORMTION
I have read the foregoing Protective Agreement, in Docket No. QWE- T -08-07
and agree to be bound by the terms and conditions of ths Agreement.
01\ ntÌ e-e ~ . 'D\Ö \lJ e r.S
Name (Type or Print)
D \ ùe.ß-t~
Employer or Fir
S:\o.\\ ?t~C\nQL
Job Title and Job Description
\c&O\ ~a.t\tÖ\ f\'\ctS-t .)~rn 47J.O
~"-\) es J C. D lSOaOd.
Business Addiess
D.w~+
Pary Represented
Signatue
ól31jQ
Date Signed
Wire Center Docket Protective Agreement
- 14 -
EXHIT "B"
mGHL Y CONFIDENTIA INORMTION
I have read the foregoing Protective Agreement, in Docket No. QWE- T -08-07
and agree to be bound by the terms and conditions of ths Agreement.
"ß4¿é t9/¡'~bkl'tn
Name (Type or Prit)
Qw~.si
Employer or Fir
cS&E cU/IOdS.$Ii: 7a.
Job Title and Job Descripti
¡t¡jj (4~~ ~el 7Jve ó~~();
Business Ad e~
Q(Jt'd
Par Represented
g.4/kgkuatue
/2~cl i31¡dØ1
Date Signed
Wire Center Docket Protective Agreement
- 14-