protective.doc

PROTECTIVE AGREEMENT
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (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 confidential 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.
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 a trade secret, confidential or proprietary information and in accordance with the purposes and intent of this Agreement.
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 to Intervenors, their experts, legal representatives or agents, who have executed an Exhibit “A” to this Agreement.
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.

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 parties or to their employees, experts, agents or representatives. Should the parties refuse to provide copies, such documents shall be made available for inspection and review by parties’ 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 notices 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 of 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.
Challenge to Confidentiality.
Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of information that a party claims is confidential. Should Staff 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.

Subsequent Challenge.
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 and all parties who have signed a Protective Agreement in 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.
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 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. To 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.
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 §§ 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.
5. (a) Receipt Into Evidence.
The following provisions shall govern the receipt into evidence of materials claimed to be confidential.
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 maintained in accordance with the terms of this Protective Agreement.
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.
In Camera Hearing and Transcripts.
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.
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 final order of a court having final jurisdiction.
Appeal.
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 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.
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 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.
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 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 written receipt verifying return shall be provided by counsel.
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.

DATED at Boise, Idaho this ___ day of December, 1999.
UNITED WATER IDAHO INC.

By_____________________________
Dean J. Miller

IDAHO PUBLIC UTILITIES COMMISSION STAFF

By ____________________________
Scott Woodbury
Deputy Attorney General
Idaho Public Utilities Commission

EXHIBIT “A”

I have reviewed the foregoing Protective Agreement dated ____________ in this audit and/or proceeding and agree to be bound by the terms and conditions of such Agreement.

Name

Residence Address

Employer or Firm

Business Address

Party

Date

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