20090930Protective Agreement.pdf

Dean J. Miler
McDEVITT & MILLER LLP
420 West Banock Street
P.O. Box 2564-83701
Boise, il 83702
Tel: [phone]
Fax: [phone]
joe(ßcdevitt-miler .com
Weldon Stutzan
Krstine Sasser
Deputy Attorney Generals
IDAHO PUBLIC UTILITIES COMMISSION
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
TeL.: [phone]
Fax: [phone]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN TH MA ITR OF THE APPLICATION
OF UNITED WATER IDAHO INC. FOR
. AUTHORITY TO INCREASE ITS RATES Case No. UW-W-09-01
AN CHARGES FOR WATER SERVICE IN
THE STATE OF IDAHO
PROTECTIVE AGREEMENT
R.ECEI\li:n.1 ., L .,..
2009 SEP 30 AM 8= S2
IDAHO PU8U(:~
UTILITIES COMMISSiON
IT is HEREBY STIPULATED AND AGREED AS FOLLOWS:
1.(a)Confidential Information.
All documents, data, information, studies and other materials furnished puruat
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, proprietar or confidential nature (herein
referred to as "Confidential Information") by the pary or entity providing the information
by staping the same with a designation indicating its trade secret, proprietar or
confidential natue. (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 strctly 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 puroses of business or competition, or any purpose other
than the purose of preparation for and paricipation in this proceeding, and shall keep
the Confidential Information secure as a trade secret, confidential or proprietar
information and in accordance with the puroses and intent of this Agreement.
(c) Persons Entitled to Review.
Access to confidential information shall be limited to members of the Staf, legal
representatives of Staff and experts, agents or representatives of staff and to Intervenors,
their experts, legal representatives or agents, who have executed an Exhibit "A" to this
Agreement.
(d) Nondisclosure Agreement.
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) Highly 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 paries or to their
employees, experts, agents or representatives. Should the paries refuse to provide
copies, such documents shall be made available for inspection and review by paries'
representatives who have executed an Exhibit "A" to this Protective Agreement at a place
and time mutually agreed upon by the paries. Where copies are not provided, the
Protective Agreement-l
individuals reviewing the Confidential Information may make limited notes regarding the
Confidential Information for reference puroses only. Such notes shall not constitute a
verbatim or substantive transcript of the Confidential Information. For purpses 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 of this Protective
Agreement.
2. Copies.
No copies or transcriptions of the Confidential Information shall btì made by the
recipient except as necessar 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.
3. Nonwaiver of Objection to Admissibilty.
The fuishing 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 pary to object to its relevance or admissibilty in any proceedings before this
Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information that a pary claims is confidential. Should any pary seek to challenge the
confidentiality of any information, they shall first contact counsel for the providing pary
and attempt to resolve any difference 'by stipulation. Resolution may include removing
the confidential classifications, creating a nonconfidential sumar, reformatting the
information, etc.
(b) Subsequent Challenge.
In the event that the paries canot agree as to the character of the information
challenged, any pary 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 par.
(c) Challenge Hearing.
The challenging pary 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)
Protective Agreement-2
business days after serving the Petition on the providing pary and the commission. To
the extent necessar, the record of the in camera bearing shall be marked
"CONFIDENTIAL - Subject to Protective Agreement dated ." To the extent
necessary, the transcript of such hearng shall be separately bound, segregated, sealed,
and witheld 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
pursuat to the Idaho Public Records Act (Idaho Code §§ 9-335 et seq.). If information
is found to be not exempt from public disclosure, Staff or any pary shall not disclose
such challenged material or use it in the public record for at least five (5) business days
unless the providing par consents to such conduct. This procedure enables the
providing party to seek a stay or other relief from the Commissioner's Order removing
the restrctions of this Agreement from material claimed to be confidentiaL. Such relief
may be sought from the Commission or a cour of competent jursdiction.
5.(a)Receipt Into Evidence.
The following provisions shall govern the receipt into evidence of materials
claimed to be confidentiaL.
(1) If Staff or other par 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
par and shall provide copies of the used Confidential Information
only to the providing par.
(2) One (l) copy of the used Confidential Information or substantive
reference to Confidential Information described in paragraph
5(a)(l) shall be placed in the sealed record.
(3) 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 pary.
Confidential documents placed in the sealed record 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
Protective Agreement-3
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 Hearing and Transcripts.
Any Confidential Information that must be orally disclosed at a subsequent
hearng 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 paries and
hearing, pursuant to the order of the Commission and/or the final order of a cour having
final jurisdiction.
(e) Appeal.
Sealed portions of the record in this proceeding may be forwarded to any cour of
competent jurisdiction for puroses 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 cour
under seal for the purposes of an appeal, the providing pary shall be notified which
portion of the sealed record has been designated by the appealing pary as necessar to
the record on appeaL.
6. Use in Pleadings.
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 wil not disclose the substantive Confidential Information contained
therein. Any use of or substative references to Confdential 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 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 tu, be disclosed by them only to individuals
who have likewise signed Exhibit "A."
7. Summary of Record.
Protective Agreement-4
If deemed necessar by the Commission, the providing pary shall prepare a
written sumar of the Confidential Information referred to in the Decision and Order to
be issued to the public and the paries.
8. Return.
(a) Return of Confidential Information.
Upon request of the providing pary, all original documents and copies of the
Confidential Information shall be destroyed by shredding or returned to the providing
pary within thirty (30) days after the final settlement or conclusion ofthis matter.
Unless otherwse 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 retued to counsel for the providing party within
thirty (30) days after final settlement or conclusion of this matter, including
administrative or judicial review thereof. After return of documents pursuant to this
paragraph, and upon request, a wrtten receipt verifying return shall be provided by
counseL.
(b) Return of Notes.
Any notes maintaned 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 par, be either returned to the providing pary or, at the option
of the recipient, destroyed by shredding.
9. This Protective Agreement shall become effective on the date hereof.
Protective Agreement-5
DATED at Boise, Idaho thisJ-~ltay of September, 2009.
UNITED WATER IDAHO INC. AND ITS
AFFILIATED COMPANIES
~~~erWl \
IDAHO PUBLIC UTILITIES COMMISSION
STAFFBYO~
Weldon B. Stutzan
BY~.¡a.~
Kristin A. Sasser
Deputy Attorneys General
Idaho Public Utilities Commission
Protective Agreement-6
EXHBIT "A"
I have reviewed the foregoing Protective Agreement dated q Ii-~ I c4 in this
audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.~rl~
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Name
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Employer or Firm
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Date i
Protective Agreement-Exhibit A
EXHIBIT "A"
I have reviewed the foregoing Protetive Agreement dateRM;:j'in ths
audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.
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Protective Agreement-Exhibit A
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated ~ in ths
audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.
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Residence Address
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Employer or Firm .
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Protective Agreement-Exhibit A
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated qp i 10 i in this
audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.
,...-)/rán~ cI;¿-iName /
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Residence Address::Pae:
Employer or Firm
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Protective Agreement-Exhibit A
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated September 28, 2009 in
this audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Par
9/Zk'/or;Date
Protective Agreement-4
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28, 2009 in
this audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.//-----~L-
David Schunke
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Pary
Ç?ær .?8, ¿gQ;?Dml '
Protective Agreement-3
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated September 28, 2009 in
this audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.
G~ tbhro&
Patricia Hars
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Pary
a. I~oloq
Date
Protective Agreement-Exhibit A
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated September 28, 2009 in
this audit and/or proceeding and agree to be bound by the terms and conditions of such
Agreement.zt~Matthew Elam.~ ~
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street
Business Address
Commission Staff
Par
1/laÚJt
Dati 7
Protective Agreement-2