20221007Protective Agreement.pdf

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PROTECTTVE AGREEMENT ::ri.., nrr _J pt{
BETWEEN i-;iru(/r I rrr
VEOLIA WATER IDAHO' INC. AnD THE 1: , r. r.i -1 i;i ,rlr
IDATIo PUBLTC uTrLrTrEs coMMIssIoN sTAFF, :',-'rli} iirjC"r,"ril
YEO-W-22-03
(and other parties as applicable)
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ISSION
This Protective Agreement is entered into this 6th day of October,2022 by and
between Veolia Water Idaho, [nc. ("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. WHEREAS, 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 5$ 74-107 through 74-109 and 48-801.
2. WHEREAS, the Company and the undersigned parties agree that entering into a
Protective Agreement 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 infornation and subsequently be requested to reveal its
contents by setting forth clear cut parameters for use of Confidential Information; and will
protect Confidential Information which might be provided during the course of the proceedings,
now therefore,
IT IS HEREBY STIPTILATED AI\D AGREED AS FOLLOWS:
l. (a) Confidential Information
All documents, data, information, studies and other materials furnished pursuant to any
requests for infonnation, subpoenas or other modes of discovery (formal or informal), and
including depositions, that are claimed to be "Confidential lnformation" shall be so marked by
the party or entity providing the infonnation by stamping the same with a designation indicating
its trade secret, proprietary or confidential nature and printed on "yellow" paper. IDAPA
31.01.01.067.02. If in electonic form, the Confidential lnformation shall be reproduced
separately on a CD-ROM or other approved storage device and clearly marked as Confidential
Information. Id. Confidential Information may also be exchanged via a secure Sharepoint site or
Protective Agreement - VEO-W-22-03 Page- 1
similar means, in which case the party providing the Confidential Information shall provide to
the Parties the password and other information necessary to obtain and download the
information.
A 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. See Rules 67.03 and 233; IDAPA 31.01.01.067.03 afi .233.
(b) Protection of Conlidential Information
Access to and review of Confidential Information shall be strictly contolled by the terms
of this Agreement. Unless otherwise ordered, Confidential lnformation, 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 not be disclosed to individuals who have not executed the nondisclosure agreement set forth
in Exhibit ooA." 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 Information for purposes 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 Confidential Information secure as tade secret, confidential or
proprietary information and in accordance with the pu{poses and intent of this Agreement.
(d) Persons Entifled to Review
Access to Confidential Information shall be limils6 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-disclosureAsreement
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 agteement or Exhibit "A" shall require the person to whom
disclosure is to be made to read a copy of this Protective Agreement and to certiff in writing that
he or she has reviewed the same and has consented to be bound by its terms. The Agreement
Protective Agreement - VEO-W-22-03 Page - 2
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. Copies
No copies or tanscriptions of the Confidential lnformation 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 funrishing of any document, infonnation, dat4 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. Challenee to Confidentialitv
(a) Initial Challenee
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 tade 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 infomration, etc. IDAPA
31.01.01.067.04.
@) Subsequent Challenee
In the event that the parties qmnot 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 docume,nt or material challenged and state the grounds upon
which the subject material is deemed to be non-confidential by the challenging party.
(c) Challense Hearins
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
Protective Agreement - VEO-W-22-03 Page - 3
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 maTked "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 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). It
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:
(l) If the requesting party intends to use Confidential Information or to make
substantive reference to Confidential lnformation 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 Confidential
Infonnation or substantive reference to Confidential lnformation only to
the providing party, and such other parties, if any, who have executed an
Exhibit "A" to this Protective Agreement.
(2) One (1) copy of the used Confidential Inforrration or substantive reference
to Confidential Information or substantive reference to Confidential
Information described in paragraph 5(a)(1) shall be placed in the sealed
record.
Protective Agreement - VEO-W-22-03 Page - 4
(3) The copy of the documents to be placed in the sealed record shall be
tendered by counsel for the providing parly to the Commission and 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 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) Iz Carzera Hearine and Transcrints
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 Agreement. Rule 243, IDAPA
31.01.01.243. Similarly, ffiy transcription of any examination or other reference 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 "A" 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 frnal 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 of the court. See Idaho Court Administative
Rules 32(gX1), (15), and (i). If a portion of the record is forwarded to a court under seal for the
purposes of an appeal, the providrng 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 Pleadines
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
Protective Agreement - VEO-W-22-03 Page - 5
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 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: (1) returned to the providing party; 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
destuction shall be provided by counsel.
(b) On a case-by-case basis and upon notification to the utility, the Commission
Staffmay retain one copy of the Confidential Infonnation under seal. Notwithstanding any other
provision in this Agreement, any member of Staff may review and use that copy of the
Confidential Information outside this proceeding while performing his or her duties as a Staff
member by signing an Exhibit A. StafPs use and disclosure of the Confidential Information 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 Information which embody
or reflect any of the Confidential Information provided under this Agreement shall, upon request
of the providing pafiy, be either returned to the providing party or, at the option of the recipient,
destroyed.
9. Effective Date
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parties.
This Protective Agreement shall become effective on the date it is fully executed by the
DATED this 6tr day of October,2022.
Vrolre Wnrnn lu^trHo, INc.
/ _----F-- . 6_4._--
By:
PrestonN. Carter
Givens Pursley, LLP
Attorneys Re,presenting Veolia Water Idaho, Inc.
IolHo Punnc Urrr.mrs Couurssrox Srlrr
By:
Mchael Duval
Deputy Attorney General
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg. 8, Suite 201-A
Boise,ID 83713
Attorneys Representing
Idaho Public Utilities Commission Staff
(Reserved for Intervenor)
By:
Its:
(Reserved for Intervenor)
By:
Its:
Protective Agreerrent - VEO-W-22-03 Page - 7
(Reserved for Intervenor)
By:
Its
Protective Agree,rnent - VEO-W-22-03 Page - 8
EXHIBIT 5A''
I havc rwiewcd the forqgoing Protoetive Agrcanent d.Ed October 6,2022, in Casc No. VEG,W-22-
03 and agrGc to be bound by rhe rnns and conditions of suc{r Agrccmern
fr*i h**
Teni Carlock
Puhlic Utilities Commission
Employer or Firm
I l33l W. Chindcn Blvd., Buildiry 8, Suitc 201-A
Rnica ldnha i1714
Business Addrcss
CommissionStaff
Party
tolularu
DBG
Protcctive Agrecment - VEO-!V-2243 Pagc - 9
EXHIBIT ..A''
I have revierved the foregoing Protective Agreement dated October 6,2022, in Case No. VEO-W-22-
03 and agree to be bound by the tetms and conditions of such Agreement.
Public Util ities Commrssron
Employer or Firm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise. ldaho 83714
Business Addrcss
Commission Staff
Party
Date
Keyt
Protective Agreement - VEO-W-2243 Page - 9
ETOIIBIT "A,'
I hevc rerricned the forcgoing Pmtcc-tive Agrcemcnt datd Octobs 6,2022, in Case No. VEO-W-22-
03 rnd agree to bc bound by the tenns and conditions of such Agrcerncnr
{1hris }Ip.nht verified lrw rttfin
Chris Hecht
Public Utilities Commission
Employer or Firm
I l33l W. Chinden Blvd., Building 8, Suite 201-A
Boise.Idaho 83714
Busirrcss Address
Commis$ion Staff
Party
(htnher (t )n7',
lhte
Protcstive Agreemont - VEO-W-22-03 Page - 9
EXHIBIT'3A'
I havc revicwed the foregoing Protective Agreement dated Octobq 6,2022, in Case No. VEGW-22-
03 and agrec to be bound by the terms and conditions of such Agreernent.
W,W
Katily Stfton
Public Utilities Commssron
Employer or Firm
I l33l W. Chirrden Blvd., Building 8, Suite20l-A
Boise.Idaho 83714
Business Address
Commission Staff
Party
Date
Protective Agreement - VEO-W-22-03 Page - 9