20041215Protective Agreements.pdf

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Dean 1. Miller
McDEVITT & MILLER LLP
420 West Bannock Street
O. Box 2564-83701
Boise, ID 83702
Tel: [phone]
Fax: [phone]
ioe~mcdevitt-miller.com
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Weldon Stutzman
Donovan Walker
Deputy Attorney Generals
IDAHO PUBLIC UTILITIES COMMISSION
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
Tel.: [phone]
Fax: [phone]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF UNITED WATER IDAHO INC. FOR
AUTHORITY TO INCREASE ITS RATES
AND CHARGES FOR WATER SERVICE IN
THE STATE OF IDAHO
Case No. UWI- W -04-
PROTECTIVE AGREEMENT
, -
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
(a)Confidential Information.
All documents , data , information, studies and other materials furnished pursuant
to any audit requests for information, subpoenas or other modes of discovery (formal or
informal), and including depositions , that are claimed in compliance with Commission
Rules of Procedures to be of a trade secret, proprietary or cQnfidential nature (herein
referred, to as "Confidential Information ) by the party or entity providing the
information by stamping the same with a designation ,indicating its trade secret
proprietary or confidential nature. (Reference IDAPA 31.01.01.233 Assertions that
discovered material is not available for public inspection). Access to and review of
Confidential Information shall be strictly controlled by the terms of this Agreement.
(b)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 participation in this proceeding, 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.
(c)Persons Entitled to Review.
Access to confidential information shall be limited to members of the Staff, legal
representatives of Staff and experts , agents or representatives of staff and
Intervenors, their experts, legal representatives or agents, who have executed an
Exhibit" A" to this Agreement.
(d)Nondisclosure A~reement.
Confidential Information shall not be disclosed to any person who has not signed
a nondisclosure agreement. The nondisclosure 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 certify in writing that he or she has reviewed the same and have
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.
(e)Sensitive Documents
As to highly sensitive documents and information, the parties shall have the
right, at their option, to refuse to provide copies to counsel for other parties or to their
employees , experts, agents or representatives. Should the parties refuse to provid~
copies , such documents shall be made ' available for inspection and review by parties
Protective Agreement-
representatives who have executed an Exhibit " A" to this Protective Agreement at a
place and time mutually agreed upon by the parties. Where copies are not provided
the individuals reviewing the Confidential Information may make limited notes
regarding the Confidential Information for reference purposes only. Such notes shall
not constitute a verbatim or substantive transcript of the Confidential Information. For
purposes hereof, notes made pertaining to or as the result of a review of Confidential
Information shall be considered Confidential Information and subject to the terms
this Protective Agreement.
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 or similar Protective Agreement executed in connection
with this " matter. When copies are made , such copies will clearly reveal the
confidential markings.
Nonwaiver of Objection 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.
Challen~e to Confidentiality
(a)Initial Challen~e.
This Protective Agreement establishes a procedure for the expeditious handling
of information that a party claims is confidential. Should any party seek to challenge
the confidentiality of any information, they 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 nonconfidential summary,
reformatting the information, etc.
(b)Subsequent Challen~
In the event that the parties cannot agree as to the character of the information
challenged, any party may petition the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission, all parties who have
signed a Protective Agreement to the case. 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 the challenging party.
Protective Agreement- 2
(c)Challen~e Hearin~.
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 or a similar Protective Agreement executed in connection with this
matter 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 extent necessary, the record of the in camera bearing shall be marked
CONFIDENTIAL - Subject to Protective Agreement dated ." 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 Commission shall issue an Order determining whether any challenged
information or materials is not properly deemed to be exempt from public disclosure
pursuant to the Idaho Public Records Act (Idaho Code 99 9-335 et seq.
).
If information
is found to be not exempt from public disclosure, Staff or any party shall not disclose
such challenged material or use it in the public record for at least five (5) business days
unless the providing party consents to such conduct. This procedure enables the
providing party to seek a stay or other relief from the Commissioner 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.
(a)Receipt Into Evidence.
The following provisions shall govern the receipt into evidence of materials
claimed to be confidential.
(1)
(2)
(3)
If Staff or other party bound by this Agreement intends to use
Confidential Information or to make substantive reference to
Confidential Information supplied to it under this agreement, they
shall give reasonable prior notice of such intention to the
providing party and shall provide copies of the used Confidential
Information only to the providing party.
One (1) copy of the used Confidential Information or substantive
reference to Confidential Information described in paragraph
5(a)(1) shall be placed in the sealed record.
Except as otherwise provided by law , only one (1) copy of the
documents designated to be placed in a sealed record shall be
made, which copy shall be supplied by the offering party.
Confidential documents placed in the sealed record shall be
Protective Agreement-
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'
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 Hearin~ and Transcri~
Any Confidential Information that must be orally disclosed at a subsequent
hearing shall be offered at an in camera hearing, attended only by persons authorized to
have access to the information under this or similar Protective Agreements executed in
connection with the subject information. Similarly, any transcription 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.
(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 or similar
Protective Agreements , 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 fmal order of a court
having fmal jurisdiction.
(e)
Sealed portions of the record in this proceeding 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. If a portion of the record is forwarded to a
court under seal for the purposes of an appeal, the providing party shall be notifiedwhich portion of the sealed record has been designated by the appealing party as
necessary to the record on appeal.
Use in Pleadin~
The following provides the terms under which Confidential Information shall be
treated in pleadings: Where references to Confidential Information in the sealed record
or with the custodian is required in pleadings, briefs, argument, 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
Protective Agreement-
placed in a separate section of the pleading or brief and submitted to the .Commission
pursuant to Paragraph 5. This sealed section shall be serviced only on counsel of
record who have signed the nondisclosure agreements set forth in Exhibit "A" attached
to this or other similar Protective Agreements, and may, in turn, be disclosed by them
only to individuals who have likewise signed Exhibit" A. "
Summary of Record.
If deemed necessary by the Commission, the providing party shall prepare a
written summary of the Confidential Information referred to in the Decision and Order
to be issued to the public and the parties.
Return.
(a)Return of Confidential Information.
Upon request of the providing party, all original documents and copies of the
Confidential Information shall be destroyed by shredding or returned to the providing
party within thirty (30) days after the final settlement or conclusion of this matter.
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 , likewise, be returned to counsel for the providing party within
thirty (30) days after fmal settlement or conclusion of this matter including
administrative or judicial review thereof. After return of documents pursuant to this
paragraph, and upon request, a written receipt verifying return shall be provided by
counsel.
(b)Return of Notes.
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 by shredding.
This Protective Agreement shall become effective on the date hereof.
Protective Agreement-
DATED at Boise, Idaho this \D~ay of December , 2004.
UNITED WATER IDAHO INC. AND ITS
AFFILIATED COMPANIES.
. \
IDAHO PUBLIC UTILITIES COMl\1ISSION
ST AFF
By v)c,
Weldon Stutzman ,,
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Donovan Walker ~'1/
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Deputy Attorney Generals
Idaho Public Utilities Commission
Protective Agreement-
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 1 oth day of December 2004 in
Case No. UWI-W -04-4 and agree to be bound by the terms and conditions of such Agreement.
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Randy Lobb
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
/2 /c-o /b Y
Date
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 1 O day of December 2004 in
Case No. UWI-W -04-4 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
ho/'
Date
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 1 Oth day of December 2004 in
Case No. UWI-04-4 and agree to be bound by the terms and conditions of such Agreement.
R~ Rick Sterling ,
Idaho Public Utilities Commission
Employer or Finn
472 W. Washington Street
Business Address
Commission Staff
Party
"LI;~/o1.
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this 10th day of December 2004 in
Case No. UWI-04-4 and agree to be bound by the tenus and conditions of such Agreement.
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r!mJ-OJ/ JCarol Cooper
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Party
I;) /13 /ot./-
Date
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 1 oth day of December 2004 in
Case No. UWI-O4-4 and agree to be bound by the terms and conditions of such Agreement.
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Idaho Publi tilities Commission
Employer or Finn
472 W. Washington Street
Business Address
Commission Staff
Party
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this lOth day of December 2004 in
Case No. UWI-04-4 and agree to be bound by the terms and conditions of such Agreement.
Terri Carlock
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
P arty
~ill
Date
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