20110215Protective Agreement.pdf

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PROTECTIVE AGREEMENTCASE NO. TFW~T.09wOl '''.' '¡'
This Protective Agreement is entered as of thé\.~ay of February 20 11 b1-qg\t~S-'
ZOU FEB 15 Pi1 4: 06
Wireless, Inc. ("TracFone") and the undersigned Interenors in Case No. TFW -T -09~O 1
(hereinafter collectively refered to as the "Parties" or individually.as a Party).
RECITALS:
1. WHEREAS, TracFone desires to make available to the Parties cerain
information respecting TracFone's Application for Designation as an Eligible
Telecommunications carrier. (Case No. TFW-T-09-0I).
2. WHEREAS, the Parties desire to receive such information.
3. WHEREAS, TracFone and the Parties anticipate that TracFone may provide,
or make available for reiew, certain infoimation considered by TracFone to be of a trade
secret, privileged, or confidential nature (as defined in Idaho Code § 9-340, et seq. and § 48.
801, et seq.).
4. WHEREAS, TracFone and the Parties agree that entering into a Protective
Agrment wil expedite the production of documents; wil afford the necessary protection to
TracPone's and the Parties' employee and/or representatives in this proceeding who might
review the Jnforination and subsequently be requested to reveal its contents by setting forth
clear cut parameter for use of Confidential Information, and wil protect Confidential
Infonnation which might be provided hereafter.
PROTECTIVE AGREEMENT - 1
9
IT is HEREBY STIPULATED AND AGREED AS FOLWWS:
i. (a) Confidential Information.
All documents, data, information, studies, and other materials furnished that are
claimed to be of trade secret, proprietary, or confidential nature (herein referred to as
"Confidential Intbnnation") shall be so marked by TracFone by stamping the same with a
designation indicating its trade secret, proprietary, or confidential nature and pnnted on
.'colored" paper. Any 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. IDAPA 31.01.01.067 and 31.01.01.233. Access to and
review of Confidential Information shall be strictly controlled by the tenns of this Agreement.
(b) Use of Confidential Information.
All persons who may be entitled to review or who are afforded access to any
Confidential Infoimation by reason of this Agreement shall neither use nor disclose the
Confidential Infonnation for purposes of business or competition or any purpse other than
the purpose of preparation for and conduct of Case No. TFW -'1-09.0 i and then solely as
contemplated herein and shall keep the Confidential Infonnation secure as trade seèret,
confidential, or proprietary infonnation and in accordance with the purposes and intent of this
Agreement.
(c) Persons Entitled to Review.
Individual 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 infonnation wil be clealy marked
and protected from unauthorized public disclosure.
PROTECTIVE AGREEMENT - 2
(d) Nondisclosure Agreement.
Confidential Information shall not be disclosed to any person who has not signed II
nondisclosure agreement on this fom!, which is attached hereto as Exhibit A and incorporated
herein. The nondisclosure agreement or Exhibit A shall require the person to whom
disclosure is to be made to read II copy of this Protective Agreement and to certify in wrting
that he or she has reviewed the same and has consented to be bound by its terms. The
Agreement shan contain the signatory's full name, pennanent address, and employer.
(e) Challenge to Company Denial of Access.
Any disputes arising as a result of TracFone's denial of access to Confidential
Information shall be resolved by the Idaho Public Utiities Commission ("Commission").
2. (a) Copies.
No copies or transcriptions of the Confidential Infonnation shall be made by the
Parties except as necessar to make the information available to individuals who have
executed an Exhibit A to this Protective Agreement.
(b) Return of Confidential Information.
Upon request of TracFone, all original documents and copies of the Confidential
Information shall be (1) retumed to TracFone or (2) shredded by the holder of such
documents.
Unless otherwise ordered, Confidential Infonnation, including transcripts or
depositions containing infoimation 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 TracFone within thirty (30) days after final
settlement 01' conclusion of the proceedings before the Commission which Confidential
Infonnation is relevant, including administrative or judicial review theref. After return of
documents pursuant to this paragraph, and upon request, a written receipt verifYing return
EXHlBITA
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shaH be provided by counseL.
(c) Return of Notes.
Any notes maintained by a recipient of Confidential Infonnation which embody or
reflec any of the Confidential Il1fonnaiion provided under this Agrement shall, upon request
ofTl'acFone, be either returned to TracFone or, at the option of the recipient, destroyed.
3. Non*waiver of Objection ti, Admissibilty.
The furnishing of any document, infonnation, data, study, or other materials pursuant
to this Protective Agreement shan in no way limit or waive the right of the providing Party to
object to its relevance or admissibilty in any proceeings before this Commission.
4. Challenge to ConfldentiaUIXi
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
infoimation TracFone cIaiins is confidentiaL. In any proceeding before the Commission, a
Party may challenge the characterization of any information, document, data, or study
claimed by TracFone to be a trade secret, proprietary, or confidential information. If seeking
to challenge the confidentiality of any information, Intervenors shall first contact counsel for
TracFone and attempt to resolve any difference by stipulation. Resolution may include
removing the confidential classifications, creating a non~confideiitial summary, refoimatting
the information, etc.
(b) Subsequent Challenge.
In the event that the parties cannot agree as to the character of the infoimation
challenged, the Parties may challenge the confidentiality of the information by petitioning in
any proceeing in which the infoimation is relevant the Commission to rule upon the
disputed infonnation. The Petition shall be served upon the Commission and aU parties to the
proceeding who have signed on Exhibit A as provided in this Protective Agrment. 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 Intervenors.
(c) Challenge Hearingi
The Parties shaH 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 shan be present. This hearing shall be commence no earlier than five
(5) business days after serving the Petition on TracFone 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.
(d) Determination.
The Parties will ask the Commission to issue an Order determining whether any
challenged infoimation or material 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 disclosure, the Parties shall not disclose such
challenged material or use it in the public record, or otherwise outside the proceedings for at
least five (5) business days unless TracFone 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 Agreement from material claimed 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 proceeing of materials
claimed to be confidential in the following manner:
(1) If a Party Ì1itends to use Confidential Information or to make
substantive reference to Confidential Infoimation supplied to it undei' this Agreement, it shall
give reasonable prior notice of such intention to TracFone and shall provide copies of the
used Confidential Information or substantive refernce to Confidential Infonnation only to
the providing Party, and such other Parties, if any, who have executed an Exhibit A to this
Protective Agreement.
(2) One (l) copy of the used Confidential Information or
substantive reference to Confidential Infonnation or substantive reference to Confidential
Infonnation described in paragraph 5(a)(l) shall be placed in the sealed record.
(3) Only one (i) copy of the documents designated to be placed in
a sealed record shall be made.
(4) The copy of the documents to be placed in the sealed record
shall be tendered to the Commission and shall be maintained in accordance wìth the teos of
this ProtectIve Agreement.
(b) ~
While in the custody of the Commission, materials containing Confidential
Infonnation shall be marked ';CONFIDENTIAL .. SUBJECT TO A TTORNEY'S
CERTIFICATE OF CONFIDENTIALITY" and shall not be examined by any person except
under the conditions set forth in this Agreement, if applicable.
(c) Iii 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 infonnation under this Protective Agreement. Similarly, any transcription
of any examination or other reference to Confidential Infoimation (or that portion of the
record containing Confidential lnfoimation) shall be marked and treated as provided herein
for Confidential Infoimation. See IDAPA 31.0 l.O 1.287.
(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 infonnation 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 infonnation 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.
6. Destruction or Return.
Unless otherwise ordered, Confidential Infonnation provided pursuant to a discovery
request and this Agreement, including transcripts of any discovery depositions to which a
cIaim of confidentiality is made, shall remain under seal, shall continue to be subject to the
protective requirements of this Agreement, and shall be destroyed or shall be retuned to
counsel for the providing ~arty within thirty (30) days after final settlement or conclusion of
this matter, including administrative or judicial review thereof.
7. Use in Pleadings.
Where references to Confidential Infonnation in the sealed record or with the
custodian is required in pleadings, briefs, arguments, or motions (except as provided in
paragraph 5), it shall be by citation to title or exhibit number or some other description that
wil not disclose the substantive Confidential Infonnation contained therein. Any use of or
substantive references to Confidential lnfoimation shall be placed in a separate secton 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 non-disclosure
agreements set forth in Exhibit A attached to this Protective Agreement and may, in turn, be
discIosed by them only to individuals who likewise signed Exhibit A.
8. Summary of Reeord.
If deemed necessary by the Commission, TracFone shall prepare a written summary
of the Confidential Infonnation referred to in Orders to be issued to the public and the parties.
9. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instniment.
10. This Protective Agreement shall become effective on the date first above wntten.
DATED this 1.day of February 201 1.
TR
By:D . Miller
Attorney Representing
TracFone Wireless, Inc.
CTe TELEe M, INC. DBA
SNAKE RJ ~; ~ pes
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IDAHO TELECOM ALLIANCE/J ~ t1 . '1 .~'. ,I _ _ . _ - L ).'f/ ./ / ¡,By: (d!/ ,!l¡;'.t/, ~ I' I~ ¡; J!l)_~a A. Melilo .
Attorney Representing
Idaho Telecoin Allance
IDAHO PUBLIC UTILITIES COMMISSION
By: rJ~.
NeB Price
Deputy Attorney General Representing
ldalio Public Utilties Commission
EXHIBIT A
i have reviewed the foregoing Protective Agreement dated February _, 20 I 0, in Case
No. TFW-T-09-0J and agree to be bound by the terms and conditions of such Agreement.
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Printed Name
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Signature
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Employer or Firm
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Business Address
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Party
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