20200924Protective Agreement.pdf

i:.,rir ti?gt
PRoTECTIVE AGREEMENT tl;ij lip eL &Fl $ $0BETWEEN
FALLS WATER CO., INC., AND TIIE , . ,, ii., ," _,i, ,._i;=*=;to,"o*,IDAIIO PUBLIC UTILITIES COMI{ISSION STAFF] ' i1.1 I .1- " ' .'"-r..*iiqii.}}**',jL{#
FLS-W-20-04
(and other parties as applicable)
This Protective Agreement is entered into this 1lfr day of September, 2020by 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:
l. WHEREAS, the Company and Staffanticipate 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. WHEREAS, 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 lrformation; 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 fumished 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
31.01.01.067.02. lf in electronic form, the Confidential Information shall be reproduced
separately on a CD-ROM or other approved storage device and clearly marked as Confidential
Protective Agreement - FLS-W-20-04 Page - 1
Information. Id. A 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. 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 lnformation shall be strictly controlled by the terms
of this Agreement. Unless otherwise ordered, Confidential lnformation, 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 lnformation by reason of this Agreement shall neither use nor disclose the
Confidential tnformation 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'oA" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosure.
(e) Non-disclosureAgreement
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-20-04 Page - 2
2. 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'4" to this Protective Agreement.
3. Non-waiver of Obiection 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.
4. Challense 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 party and attempt to resolve any
difference by stipulation. Resolution may include removing the confidential classifications,
creating a non-confidential srunmary, reformatting the information, etc. IDAPA
31.01.01.067.04.
(b) Subsequent Challenee
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 pa(r.
(c) Challense Hearine
The challenging party shall request that the Commission conduct anin 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.
Protective Agreement - FLS-W-20-04 Page - 3
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. 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). lf
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) Receipt 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 lnformation 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 lnformation only to
the providing party, and such other parties, if any, who have executed an
Exhibit "A" to this Protective Agreement.
(2) One (1) copy of the used Confidential lnformation or substantive reference
to Confrdential Information or substantive reference to Confidential
lnformation described in paragraph 5(a)(1) shall be placed in the sealed
record.
Protective Agreement - FLS-W-20-04 Page - 4
(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.
(b) Seal
While in the custody of the Commission, materials containing Confidential Information
shall be marked "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 Camera Hearins. andTranscriots
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 information under this Protective Agreement. Rule 243,DAPA31.01.01.243.
Similarly, any tanscription 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. 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 "A" as provided in this Protective Agreement, unless
such information is released from the restictions 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 ofcompetentjurisdiction for purposes ofan appeal, but under seal as
designated herein for the information and use of the court. See Idaho Court Administrative Rules
32(g)(I), ( 1 5), 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.
Protective Agreement - FLS-W-20-04 Page - 5
6. Use in Pleadines
Where references to Confidential Information 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 lrformation contained 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 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: (1) returned to the providing party; 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 Lrformation under seal. Notwithstanding any other
provision in this Agreement, any member of Staffmay 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
Protective Agreernent - FLS-W-20-04 Page - 6
of the providing party, be either returned to the providing party or, at the option of the recipient,
destroyed.
9. Effective Date
This Protective Agreement shall become effective on the date it is fully executed by the
parties.
DATED this 1 lft day of September, 2020.
Falls Water Co.r Inc.
a?2-Z--.-
By:
Preston N. Carter
Givens Pursley, LLP
Attomeys Representing Falls Water Co., Inc.
IDAIIO PUBLIC UTILITIES COMMISSION STAFF
By:
Matt Hunter
Deputy Attomey General
Idaho Public Utilities 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-20-04 Page - 7
EXHIBIT "A"
I have rcviewed the foregoing Protective Agreement doted Septernber I l, 2020, in Case No. FLS-W-20-
04 and agrcc to bc bound by lhc tcnns and condilions of such Agrccmcnl
Name
Idaho Puhlic tltilities (sr(ln
Employer or Firm
I l33l W. ChindEn Blvd., Building 8, Suite 201-A
Boisa ldaho 83714
Businms Address
Party
n /t{lso)cl
Date
Protective Agreement - FLS-\tr-2G04 Page - 8
EXHIBIT OA"
I havc reviewcd thc foregoing Protective Agreement dated September I 1,2020, in Case No. FLS-W-20-
04 and agree to be bound by the terms and conditions of such Agreement.
I t vT*ry trf*Dwufr.m
Idaho Public Utilities Comm
Employer orFirm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise- tdaho fl1714
Business Address
Commission Staff
ParU
Protective Agreement - FLS-W-20-04 Page - I
EXHIBIT T'A"
I have revierved the foregoing Proteclive Agreement dated Seplember ! l, 2020, in Case No. FLS-W-2O-
04 and agree to be bound by the terms and conditions of such Agrcement.
Name
ldaho Prrhlie I ltilities
Employer or Fimr
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise- ldaho 83?14
Business Address
Conrnrissinn Stnff
Party
t(
Date
Protective Agreement * FLS-W-20-04 Page - 8
EXHIBIT *A'
I havc reviewcd the foregoing Protective Agreement dated September I 1,2020, in Case No. FLS-W-2O-
04 and agree to be bound by the terms and conditions ofsuch Agreement.
e
Name
ldaho Public Lltilities Comm tsston
Employer or Firm
ll33l W. Chinden Blvd., Building 8, Suite 201-A
Boi-se- ldaho R?714
Business Address
Commission Steff
tf J
Date
<*L
Party
1
Protective Agreement * FLS-W-20-04 Page - B