20220907Protective Agreement.pdf

RECEIVED
2022 SEP-6 PM 4:17
IDAHO PUtsLIC
UTILITIES CON4MISSIONPROTECTIVE AGREEMENT
BETWEEN
GEM STATE WATER COMPAIYY, LLC AI\ID THE
IDAIIO PUBLIC UTILITIES COMMISSION STAFF
GSW-W-22-01
(and other parties as applicable)
This Protective Agreement is entered into this 66 day of Septembe1,2022 by and between
Gem State Water Company, LLC ("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. WIIEREAS, 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 rn ldaho Code $$ 7 4-107 through 7 4-109 and 48-80 1 .
2. WHEREAS, the Company and the undersigned parties agree that entering into a
Protective Agreernent 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 lnformation; and will
protect Confidential Information which might be provided during the course of the proceedings,
now therefore,
IT IS HEREBY STIPTILATED AND AGREED AS FOLLOWS:
l. (a) Confidential Information
All documents, data, information, studies and other materials fumished pursuant to any
requests for information, subpoenas or other modes of discovery (fomral or infornal), 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'!ellow" paper. IDAPA
31.01.01.067.02. lf nelectonic form, the Confidential Information shall be reproduced
separately on a CD-ROM or other approved storage device and clearly marked as Confidential
lnformation. Id. A claim of confidentiality must be accompanied by an attorney's certificate
Protective Agreement - GSW-W-22-01 Page- 1
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 Information shall be strictly conftolled by the terms
of this Agreement. Unless otherwise ordered, Confidential lnformation, including tanscripts 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 forlh
in Exhibit "A.' IDAPA 3 I .0 I .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 Infomration forpurposes 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 Confrdential lnformation 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 lnformation 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-disclosureAqreement
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 certi$/ in writing that
he or she has reviewed the same and has consented to be bound by its tenns. 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 - GSW-W-22-01 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 "A" to this Protective Agreement.
3. Non-waiver of Obiection to Admissibilitv
The fumishing 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 Challenqe
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 summary, 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 party.
(c) Challense Hearinq
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 - GSW-W-22-01 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). 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:
(1) 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 Conlidential
Information or substantive reference to Confidential Inforrnation 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 lnformation or substantive reference
to Confidential lnformation or substantive reference to Confidential
Information described in paragraph 5(aXl) 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 - GSW-W-22-0 I 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) ft Canrera llearins 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 information under this Protective Agreernent. Rule 243, IDAPA
31.01.01.243. Similarly, my tanscription of any examination or other refere,nce to Confidential
Information (or that portion of the record containing Confidential Infomration) 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 '6A" as provided in this Protective Agreement, unless
such information 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 frnal jurisdiction.
(e) Apneal
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(gXl), (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 Pleadings
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 Information contained therein. Any use of or substantive references to
Confidential Information shall be placed in a separate section of the pleading or brief and
Protective Agreement - GSW-W-22-01 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 pafiy; 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 retum 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 lnformation outside this proceeding while performing his or her duties as a Staff
member by signing an Exhibit A. Staffs use and disclosure of the Confidential lnformation 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 lnformation which embody
or reflect any of the Confidential lnformation 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 - GSW-W-22-01 Page - 6
parties.
9. Effective Date
This Protective Agreement shall become effective on the date it is fully executed by the
DATED 11;s 6th day of September,2022.
Gem State Water Company, LLC
By:(Db. d. ,/r1r".,"
Eric W. Nelsen
Senior Regulatory Attorney
Northwest Natural
Attomey Representing Gem State Water Company, LLC
IDAHO PTJBLIC UTILITTES COMN{ISSION STAFF
By:
Afforney General
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg. 8, Suite 201-A
Boise,ID 83713
Attorney Representing
Idaho Public Utilities Commission Staff
Protective Agreement - GSW-W-22-01 Page - 7
E}GIBIT ..A''
I have revieryed the foregoing Protective Agreement dated Septe,mber 6,2022be"asaNo. GSW-W-2241
and agree to be bound by the terms and conditions of such Agreement.
Chris Budin, Deputy Attonrey Geueral
Public Utilities Commission
EmployerorFirm
11331 W ChindenBlvd., Building 8, Suite 2Ol-A
Boise,Idaho 87714
Business Address
Cnrnrnissirrn Sfcff
Party
qt612022
Date
Protective Agroement - GSW-W-22-01 Page - 8
EXHIBIT "A'
I have rcvicwed the foregoing Protective Agreement dated September 6, 2022 in Case No. GSW-W-
22-01 and agree to be bound by the terms and conditions of such Agreernent.
Jrrnl Lo,)"&
Teni Carlock
Public Utilities Commission
Employeror Firm
I l33l W. Chinden Blvd., Building 8, Suite20l-A
Boise- ldaho 83714
Business Address
Commission Staff
Party
Date
Protective Agreement - GSW-W-1}-OI Page - I
EXHIBIT "A''
I have revierved the foregoing Proteetive Agreement daled September 6, 2022 in Case No. GSW-W-
22-01 and agree to be bound by the terms and conditions of such Agreement.
Public Utilities Commission
Employer or Finn
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise.ldaho 83714
Business Address
Commission Staff
Party
Protective Agreement - GSW-W-22-01 Page - I
EXHIBIT..Art
I have revierved the forqgoing Protective Agreement dated Septcmbrlr 6,2022 in Case No. GSW-W-
22{l and agree lo be bound by the terms and conditions of such Agrecment.
Pubtic Utilities Commission
Employer or Firm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise.ldaho 83714
Business Address
Commission Staff
Party
M
7
Protective Agreement - GSW-W-22-01 Poge - 8
E'(HIBIT "A''
I hEve revlewed the foregoing Protective Agreement dated Scptembr;r 6,2022 in Case No. G$W-W-
22-01 and cgree to ba bound by the tcrms and eonditions of such Agteement.
Public Utilities Commission
Employer or Firm
I l33l W. Chinden Blvd, Building 8, Suite 201-A
Boise^ Idatro 81714
Business Addrcss
Commission Staff
Party
t/e/u
Date
Protective Agrcement - GSW-W-22-0 I Page - 8
EXHIBIT '3A"
I have revieryed the foregoing Protective Agreanent dated Sepanber 6,2022 in Case No. GSW-W-
22-01 and ogfce lo be bound by thc tcrms and conditions of such Agreement.
Matt Suess
Public Utilities Commission
Employeror Firm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise. ldaho 83714
Business Address
Commission Staff
Party
q
Date
Protective Agreement - GSW-W-22-01 Page - 8
EXHIBIT ..A"
I have revierved tlre foregoing Protective Agreement dated September 6,2022 in Case No. GSW-W-
22-01 and agree to be bound by the terms and conditions of such Agreement.
Travis Culbertson
Public Utilities Commission
Employer or Firm
11331 W. Chinden Blvd., Building 8, Suite 201-A
Boisa ldaho 83714
Business Address
Commission Staff
Party
qlt, /t L?-Datd I
Protective Agreement - GSW-W-22-0 I Page - 8
E:XTIIBIT ..A''
I have rwicwed thc fongoing Prctective Agrcemcnt dated Septembr &2U22 in Case No. GSW-W-
22{ll and qgrGe to be bound by lhe terms and conditbns ofsuch Agrcement.
ehb W. g(e, verified bv rcturn email
Chris Heht
Public Utilitics Commission
Employer or Firm
ll33l W. Chinden Blvd., Building 8, Suitc 201-A
Bolse- Idaho 83714
Business Address
CommissionStaff
Seotembcr 6.2A22
Date
Party
Protective Agreement - GSW-W-22-01 Page- 8
EXHTBIT "A"
I have revierved the foregoing Protective Agreement dated Septembcr 6,2022 in Case No. GSW-W-
22-01 and agres to be bound by the terms and conditions of such Agreement.
Keyt
Drrhlio I lriliriFs (.arnrniecian
Employer or Firm
I l33l W. Chinden BIvd., Building 8, Suite 201-A
Boise.ldaho 83714
Business Address
Commission Staff
Party
Date
Protective Agreement - GSW-W-22-0 I Page - 8
EXHIBIT I3A''
I have revieived the foregoing Protective Agreonant dated September 6, 202? in Case No. GSW-W-
22-01 and agree to be bound by the terms and conditions of such Agreanent.
-x^I- ,\N,-^
ry Johhsdn \l
Public Utilities Commission
Employeror Firm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise- ldaho 83714
Business Address
Commission Staff
Party
Date
b1
Protective Agreement - CSW-W-22-0 I Page - 8