20201022Protective Agreement.pdf

},,;II'JT'J
PROTECTIVE AGREEMENT :+;,i iil"i l? Plt Z: ilSBETWEEN
FALLS WATER C0.,INC., AI\D THE , .' l; :'"... 'i ,i.l-. -...IDAHO PUBLIC UTILITIES COMMISSION STAFF' .i .. '.:- : ; ':."1.'}.."i8i.#iE
FLS-W-20-03
(and other parties as applicable)
This Protective Agreement is entered into 1111. 22nd day of October,2020 by and
between Falls Water Co., Inc. ("Company") and the Idaho Public Utilities Commission Staff
("Staff'). Other parties to the proceeding, such as any intervenors, may enter into this Protective
Agreement by executing the Agreement.
RECITALS:
1. WHEREAS, the Company and Staff anticipate that parties to this proceeding 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 ("Confidential Information") as
defined in ldaho Code $$ 74-107 through 74-109 and 48-801.
2. WIIEREAS, the Company and the undersigned parties agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary
protection to the Company's and the undersigned parties' employees and/or representatives in
the proceeding 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:
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 "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 and printed on "yellow" paper. IDAPA
3l.01.01 .067 .02. If in electronic form, the Confidential Information shall be reproduced
separately on a CD-ROM or other approved storage device and clearly marked as Confidential
Information. Id. A claim of confidentiality must be accompanied by an attorney's certificate
Protective Agreement - FLS-W-20-03 Page - I
that the material is protected by law from public disclosure and cite the specific legal authority to
supportthe claim. See Rules 67.03 and 233; IDAPA 31.01.01.067.03 and.233.
(b) Protection of Confidential Information
Access to and review of Confidential Information shall be strictly controlled by the terms
of this Agreement. 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 not be disclosed to individuals who have not executed the nondisclosure agreement set forth
in Exhibit "A." IDAPA 31.01.01.067.03-.04, .287.
(c) 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.
(d) Persons Entitled to Review
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 information will be clearly marked and protected from
unauthorized public disclosure.
(e) Non-disclosure Asreement
Confidential Information shall not be disclosed to any person who has not signed a non-
disclosure agreement on this form, which is attached hereto as Exhibit "A" and incorporated
herein. The non-disclosure agreement or Exhibit "A" shall require the person to whom
disclosure is to be made to read a copy of this Protective Agreement and to certiff in writing that
he or she has reviewed the same and has consented to be bound by its terms. The Agreement
shall contain the signatory's full name, permanent address and employer. Such agreement shall
be delivered to counsel for the providing party before disclosure is made.
Protective Agreement - FLS-W-20-03 Page -2
2. Conies
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 o'A" to this Protective Agreement.
3. Non-waiver of Obiection to Admissibilitv
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.
4. Challenee to Confidentialitv
(a) Initial Challenee
This Protective Agreement establishes a procedure for the expeditious handling of
information 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 parly and attempt to resolve any
difference by stipulation. Resolution may include removing the confidential classifications,
creating a non-confidential summary, reformatting the information, etc. IDAPA
31.01.01.067.04.
(b) Subseouent Challense
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 information. The Petition shall be served upon the Commission and all parties to
the case who have signed on Exhibit "A" as provided in this Protective Agreement. The Petition
shall designate with specificity the document or material challenged and state the grounds upon
which the subject material is deemed to be non-confidential by the challenging party.
(c) Challense Hearine
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
Protective Agreement - FL S-W-20-03 Page - 3
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. See Rule 287, IDAPA 31.01.01.287.
(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 $$ 74-l0l through 74-126). If
information is found to be not exempt from disclosure, no party shall disclose such challenged
material or use it in the public record, or otherwise outside the proceedings for at least five (5)
business days unless the providing party consents to such conduct. This procedure enables the
providing party to seek relief and to separate non-exempt material from that found to be
confidential. Such relief may be sought from the Commission or a court of competent
jurisdiction.
5. (a) Receint Into Evidence
Provision is hereby made for receipt into evidence in this proceeding of materials claimed
to be confidential in the following manner:
(l) If the requesting party intends to use Confidential Information or to make
substantive reference to Confidential Information supplied to it under this
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 an
Exhibit'oA" to this Protective Agreement.
(2) One (l) copy of the used Confidential Information or substantive reference
to Confidential Information or substantive reference to Confidential
Information described in paragraph 5(a)(1) shall be placed in the sealed
record.
(3) The copy of the documents to be placed in the sealed record shall be
tendered by counsel for the providing party to the Commission and shall
be maintained in accordance with the terms of this Protective Agreement.
Protective Agreement - FLS-W-20-03 Page - 4
(b) Seal
While in the custody of the Commission, materials containing Confidential Information
shall be maTked "CONFIDENTIAL - SUBJECT To ATTORNEY'S CERTIFICATE oF
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
forth in this Agreement, if applicable.
(c) In CameraHeuins. andTrtnscriots
Any Confidential Information that must be orally disclosed at a hearing in the
proceedings shall be offered at an in camero hearing, attended only by persons authorized to
have access to the information under this Protective Agreement. Rule 243,IDAPA
3l .01 .01 .243 . Similarly, any transcription of any examination or other reference to Confidential
lnformation (or that portion of the record containing Confidential Information) shall be marked
and treated as provided herein for Confidential Information. Rule 287, IDAPA 31.01.01.287.
(d) Access to Record
Access to sealed testimony, records, and information shall be limited to the Commission
and persons who have signed an Exhibit o'A" as provided in this Protective Agreement, unless
such information is released from the restrictions of this Agreement either through agteement 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 information and use of the court. See Idaho Court Administrative
Rules 32(9)(1), (15), and (i). 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. Use in Pleadines
Where references to Confidential lnformation 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 will not disclose the
substantive Confidential Information contained therein. Any use of or substantive references to
Confidential lnformation shall be placed in a separate section of the pleading or brief and
Protective Agreement - FL S-W-20-03 Page - 5
submitted to the Commission pursuant to Paragraph 5. This sealed section shall be served only
on counsel of record who have signed the nondisclosure agreements set forth in Exhibit "A"
attached to this Protective Agreement, and may, in turn, be disclosed by them only to individuals
who likewise signed Exhibit "A".
7. Summarv of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
8. Return or Destruction of Confidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Information shall be: (l) returned to the providing party1' or (2) or at the option of
the recipient destroyed within thirty (30) days after the final settlement or conclusion of the
proceedings, including administrative or judicial review thereof. After return or destruction of
documents pursuant to this paragraph, and upon request, a written receipt veriffing return or
destruction shall be provided by counsel.
(b) On a case-by-case basis and upon notification to the utility, the Commission
Staff may retain one copy of the Confidential Information under seal. Notwithstanding any other
provision in this Agreement, any member of Staff may review and use that copy of the
Confidential Information outside this proceeding while performing his or her duties as a Staff
member by signing an Exhibit A. Staff s use and disclosure of the Confidential Information in a
later Commission proceeding shall be subject to any protective agreement signed in the
subsequent proceeding.
(c) 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.
Protective Agreement - FLS-W-20-03 Page - 6
9. Effective Date
This Protective Agreement shall become effective on the date it is fully executed by the
parties.
DATED 1615 22nd day of October,2020.
Falls Water Co.r Inc.
By:(U. dr/rh"r,
Eric W. Nelsen
Senior Regulatory Attorney
Northwest Natural
Attorney Representing Falls Water Co., Inc.
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By
r(
Edward J.
Deputy A
Idaho Public Commission
I l33l W. Chinden Blvd., Bldg. 8, Suite 201-A
Boise,ID 83713
Attorney Representing
Idaho Public Utilities Commission Staff
Protective Agreement - FLS-W-20-03 Page - 7
EXHIBIT "A'
I have rcviewed the forcgoing Pmtective Agrcement datd Oetober 2I,ZO2O, in Case No. FLJS-W-2&
03 and egr€c to bc bound ry th rcrms and conditions of such Agrecmot.
Terri C;arlock
Public Utilitics Commrssron
Employeror Firm
I l33l W. Chinden Blvd., Building 8, Suitc 201-A
Boise- Idaho 837td
Btsiness Addrcss
Commission Staff
Party
Date
Pmtective Agreement - FLS-W-20{3 Page - 8
EXIIIBM ..A"
I have reviewed the foregoing Protective Agreement dated October 21,2020, in Case No. FLS-W-20-
03 and agree to be bound by the terms and conditions of such Agreement.
lsl Gl,wn ?ktlf
Chris Hecht
Puhlic I Itilities Commrssron
Employer or Firm
ll33l W. Chinden Blvd., Building 8, Suite 201-A
Roise- Idaho R17lL
Business Address
Commission Staff
to/zt/zozo
Date
Party
Protective Agreement - FLS-W-20-03 Page - 8
EXHIBIT *A"
I have revierved the foregoing Protective Agreement dated October 21, 2020, in Case No. FLS-W-20-
03 and agrce to be bound by the terms and Agreement.
Donn
Puhlic tltilities Commission
Employer or Firm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise- ldaho 83714
Business Addrcss
Cnmmissinn Srnff
Party
lO'21-2a
Date
Protective Agreement - FLS-W-20-03 Page - 8
EXHIBIT 'IA"
I have rcvicwcd the foregoing Protective Agreement dated October2l,2A2O, in Case No. FLS-1V-20-
03 and agrcc to be bound by the terms and conditions of such Agreement.
Drrhlio I ltilitinc flnrnrniccinn
Employer or Firm
I l33l W. Chinden Blvd., Building SSuite 201-A
Boise. Idaho 83714
Business Addres
Commission Staff
Party
lo Z2 2o
Date
Pmtective Agree'rnent - FLS-W-20-03 Page - 8
EXHIBIT .{A"
I have reviewed the foregoing Protective Agreement dated October2l,2A20, in Case No. FLS-W-2&
03 and agree to bc bound by thc tcrms and conditions of such Agrcement.
dM
Travis Culbertson
Publ ic Utilities Commission
Employer or Firm
11331 W. Chinden Blvd., Building SSuite 201-4
Boise^ Ideho 81114
Business Address
Commi-ssion Staff
Party
/a ZL
Date
JProtective Agreement - FLS-W-20-03 Page - 8
EXHIBIT "A''
I have reviewod the foregoing htective Agreenrnt dated Octobe r2l ,2A20, in Case No. FL$W-2G
03 and agree to be bourd by the terms and conditions of such AgreemenL
Bentley
Puhlic t ltilitbs Commietinn
Employer orFirm
I l33l W. ChindenBlvd., Building 8Suite 201-A
Eoise- Llaho R7711
Business Address
Commission Staff
Party
Date
Protective Agwment - FLS-W-20{3 Page - 8
EXHIBIT ..A"
I have reviewed the foregoing Protective Agreement dated October 21,202A, in Case No. FLS-W-20-
03 and agree to be bound by the lerms and conditions of such Agreemcnt.
Public Utilities Cornmission
Employer or Firm
I l33l W. Chinden Blvd., Building 8Suite 201-A'
Boise.Idaho 83714
Business Address
Commission Staff
Party
-{f
Date
Protective Agreement - FLS-W-20-03 Page - 8