20110823Protective Agreement.pdf

RECEI\!EDPROTECTIVE AGREEMENT
BETWEEN 20t I AUG 22 Pr~ 4: 58
UNITED WATER IDAHO INC. A~l?f Tß, f)' ............
rDAHO PUBLIC UTILITIES COMMI~~ttWf~lt1f"¡'(¡¡;;;S(C
This Protective Agreement is entered into this /glL day of August 201 I by United
Water Idaho Inc. and the Idaho Public Utilities Commission (Stam, and other paries as applicable.
Recitals:
1. WHEREAS, United Water and the Idaho Public Utilities Commission Staff(hereinafter
HStaff") anticipate that paries to this proceeding may make requests to provide, or make available
for review, certain infoimation, considered by its custodian to be of a trade secret, privileged or
confidential nature (as defined in Idaho Code §§ 9-340 and 48-801).
2. WHEREAS, United Water and Staffagree that entering into a Protective Agreement wil
expedite the production of documents; will afford the necessar protection to United Water's and
Stafrs employees and/or representatives in this 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 wil protect Confidential Infonnation which might be provided durng
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 of trade secret, proprietar or confidential natue (herein referred
to as "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. Any 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. IDAPA 31.01.01.233. Access to and
review of Confidential Infonnation shall be strictly controlled by the tenns of this Agreement.
PROTECTIVE 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 (nformation
for purposes of business or competition, or any purpose other than the purpose ofprepartion for and
conduct of the proceedings, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secret, confidential or proprietar 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 counsel of the undersigned parties,
employees, experts, agents or representatives of the undersigned paries who have executed an
Exhibit "A" to this Agreement. Such information wil be clearly marked and protected from
unauthorized public disclosure.
(d) Non-disclosure Agreement.
Confidential Information shall not be disclosed to any person who has not signed a non-
disclosure agreement on this fonn, 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 certify 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.
2. (a) 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.
(b) Return of Confidential Information.
Upon request of the providing pary, all original documents and copies of the Confidential
InfOlmation shall be: (l) returned to the providing pary or (2) shredded by the holder of such
documents within thirty (30) days after the final settlement or conclusion of the proceedings,
including administrative or judicial review thereof.
Unless otherwise ordered, Confidential Infonnation, including transcripts of depositions
containing information to which a claim of confidentiality is made, shall remain under seal, shall
PROTECTIVE AGREEMENT 2
continue to be subject to the protective requirements of this Agreement, and shall likewise, be
returned to counsel for the providing party within thirt (30) days after final settlement or conclusion
of the proceedings, 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.
(c) Return of Notes.
Any notes maintained by a recipient of Confidential Information which embody or reflect any
of the Confidential Information provi~ed under this Agreement shall, upon request of the providing
pary, be either returned to the providing party or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty.
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 betore this Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information that a party claims is confidential. Any part may challenge the characterization of any
information, document, data or study claimed by the providing party to be a trade secret. proprietar
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.
(b) Subsequent Challenge.
In the event that the parties cannot agree as to the character of the infonnation challenged,
any party challenging the confidentiality may petition the Commission to rule upon the disputed
information. The Petition shall be sered 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 are deemed to be non-confidential by the challenging party.
PROTECTIVE AGREEMENT 3
'\
(c) Challenge Hearing.
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 hearng 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 tenns of this Agreement.
(d) Determination,
The paries wil ask the Commission to issue an Order detennining whether any challenged
information or materal is not properly deemed to be exempt from public disclosure pursuant to the
Idaho Public Records Act (Idaho Code §§ 9-335, 9-337, 9-340A). Ifinformation 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 restrictions of this Agreement from
material claimed to be confidentiaL. Such relief may be sought from the Commission or a court of
competent jurisdiction.
S. (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 Infonnation 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 pary and shall provide copies of the used Confidential Infonnationor substantive reference to Confidential Information only to the providing
party, and such other parties, if any, who have executed an Exhibit "A" to this
Protecti ve Agreement.
(2) One (I) copy of the used Confidential Information or substantive reference to
Confidential Infoimation or substantive reference to Confidential Information
described in paragraph 5(a)( I) shall be placed in the sealed record.
(3) The copy ofthe documents to be placed in the sealed record shall be tendered
by counsel for the providing pary to the Commission, and shall be
maintained in accordance with the terms of this Protective Agreement.
PROTECTIVE AGREEMENT 4
(b) SeaL.
While in the custody of the Commission, materials containing Confidential Infonnation 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) 11, Camera Hearing and Transcripts.
Any Confidential Information that must be orally disclosed at a hearing in the proceedings
shall be offered at an in camera hearng, attended only by persons authonzed to have access to the
information under this Protective Agreement. 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 Infonnation.
(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 restnctions of this Agreement either through agreement of the
parties or after notice to the parties and heanng, 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 ofthe court. If a portion ofthe 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 patty as necessary to the record on appeaL.
6. Destruction (or Return).
Unless otherwise ordered, Confidential Infonnation provided puruant to a discovery request
and this Agreement, including transcripts of any discovery depositions 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 be destroyed (or shall be returned to counsel for the
providing party) within thirty (30) days after final settlement or conclusion of this matter, including
administrative or judicial review thereof~
PROTECTIVE AGREEMENT 5
7. 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 wil not disclose the substantive
Confidential Infonnation 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".
8. Summary of Record.
If deemed necessar by the Commission, the providing parties shall prepare a written
summar of the Confidential Information referred to in Orders to be issued to the public and the
parties.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT 6
DATED this \ t."day of August 201 l.
UNITED WATER IDAHO INC.
By~\liL i
Dean J. Miler
McDevitt & Miler, LLP
420 W. Bannock Street (83702)
PO Box 2564
Boise, ID 83701-2564
Attorneys Representing
United Water Idaho Inc.
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By i)-r~
Weldon B. tutzman
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, JD 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this day of August 20 i i in
Case No. UWI- W - i i -02 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, 10 83702
Business Address
Commission Staff
Pary
r/17/ZoI/
Date
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated this day of August 20 I t in
Case No. UWI- W - t t -02 and agree to be bound by the terms and conditions of such Agreement.
~ r~.~0tJV-LWiC'C
Terri Carlock
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Party
8)r7)ac¡1
Date ¡ ¡
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this day of August 201 1 in
Case No. UWI-W-I 1-02 and agree to be bound by the terms and conditions of such Agreement.
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Party
~ /r, ~II
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this day of August 201 1 in
Case No. UWI-W-l 1-02 and agree to be bound by the terms and conditions of such Agreement.
é?~ARick teg "
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
Ph7l
Date 7
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this day of August 20 i i in
the terms and conditions of such Agreement.
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Party
gl¡7ÚI, ,Date
EXHIBIT" A"
I have reviewed the foregoing Protective Agreement dated this day of August 20 i i in
Case No. UWI- W - i i -02 and agree to be bound by the terms and conditions of such Agreement.
CCl=! M)A C *
Cathleen McHugh
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
Au5 to 2-(1
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this day of August 20 i i in
Case No. UWI- W -1 i -02 and agree to be bound by the terms and conditions of such Agreement.
L '- L. llectT
Chris Hecht
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street. Boise, ID 83702
Business Address
Commission Staff
Pary
Date
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated this I lJfl day of August 201 1 in
Case No. UWI-W-I 1-02 and agree to be bound by the terms and conditions of such Agreement.
fL..A D~\At~Bev~
Idaho Public Utilties Commission
Employer or Firm
472 W. Washington Street, Boise, ID 83702
Business Address
Commission Staff
Pary
1ri~((
iDate