20080416Attorney's Certificate.pdf

,
John R. Hammond, Jr. ISB # 5470
FISHER PUSCH & ALDERMAN LLP
101 So. Capitol Blvd., 5th Floor
PO Box 1308
Boise ID 83701
Telephone: [phone]
FAX: [phone]
Email: jrh(Çfpa-Iaw.com
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Mark C. Moench
Sr. VP and General Counsel
201 South Main, Suite 2400
Salt Lake City UT 84111
Telephone: [phone]
FAX: [phone]
Email: mark.moench~pacificorp.com
Daniel E. Solander
Senior Counsel
201 South Main, Suite 2400
Salt Lake City UT 84111
Telephone: [phone]
FAX: [phone]
Email: danie1.solander~pacificorp.com
Attorneys for Rocky Mountain Power
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
OF ROCKY MOUNTAI POWER FOR ) CASE NO. PAC-E-08-02
AN ACCOUNTING ORDER TO )
ESTABLISH A REGULATORY ASSET ) ATTORNEY'S CERTIFICATE CLAIM OF
) CONFIDENTIAITY FOR EXHIBITS IN
) SUPPORT OF APPLICATION
JOHN R. HAMMOND, being first duly sworn upon oath, deposes and states as follows:
1. I am one of the attorneys for Rocky Mountain Power in this proceeding.
2. I make this certification and claim of confidentiality pursuant to Idaho Commission
Rule ofProcedi:e 67 because the Company through certain exhibits and supporting work papers is
ATTORNEY'S CERTIFICATE CLAIM OF CONFIDENTIALITY FOR EXHIBITS IN
SUPPORT OF APPLICATION-1
ORIGINAL
disclosing information that is CONFIDENTIAL and constitutes TRÀDE SECRETS as defined by
Idaho Code §§ 9-340 and 48-801 and protected under Commission Rules of Procedure 67 and 233.
3. The confidential exhibits that the Company is submitting in support of its Application
for an Accounting Order to Establish a Regulatory Asset wil be marked as "CONFIDENTIAL" and
will be submitted on colored paper under separate cover.
4. These exhibits are claimed as confidential because they pertain to the Company's
proposed transaction to purchase a generation plant (the "Proposed Transaction") to be used in its
operations. Specifically, these exhibits contain commercially sensitive and confidential business
information that is of significant commercial value and which could expose the Company and the
counterparty in the Proposed Transaction to competitive injury if disclosure is unrestricted.
Unrestricted disclosure of this information could also be detrimental to the Company's customers
and future resource acquisition plans.
5. I am ofthe opinion that this information is "CONFIDENTIAL" as defined by Idaho
Code §§ 9-340 and 48-801, should therefore be protected from public inspection, examination and
copying, and should be utilized only in accordance with the terms of a protective agreement
substantially in the form of Attachment 1.
FURTHER YOUR AFFIANT SAITH NAUGHT.
DATED This l5th day of April, 2008.
Hammond Jr.
eys for Rocky Mountain Power
ATTORNEY'S CERTIFICATE CLAIM OF CONFIDENTIALITY FOR EXHIBITS IN
SUPPORT OF APPLICATION - 2
SUBSCRIED AND SWORN TO before me this 15th day of
Notar Public for Idaho
Commission Expires
ATTORNEY'S CERTIFICATE CLAIM OF CONFIDENTIALITY FOR EXHIBITS IN
SUPPORT OF APPLICATION - 3
ATTACHMENT 1
FORM OF PROTECTIVE AGREEMENT
ATTORNEY'S CERTIFICATE CLAIM OF CONFIDENTIALITY FOR EXHIBITS IN
SUPPORT OF APPLICATION - 4
John R-Hammond, Jr. ISB # 5470
FISHER PUSCH & ALDERMAN LLP
101 So. Capitol Blvd., 5th Floor
PO Box 1308
Boise ID 83701
Telephone: [phone]
FAX: [phone]
Email: jrh(ifpa-law.com
Mark C. Moench
Sr. VP and General Counsel
201 South Main, Suite 2400
Salt Lake City UT 84111
Telephone: [phone]
FAX: [phone]
Email: mark.moench~pacificorp.com
Daniel E. Solander
Senior Counsel
201 South Main, Suite 2400
Salt Lake City UT 84111
Telephone: (80l) 220-4014
FAX: [phone]
Email: danie1.solander~pacificorp.com
Attorneys for Rocky Mountain Power
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
OF ROCKY MOUNTAIN POWER FOR ) CASE NO. PAC-E-08-02
AN ACCOUNTING ORDER TO )
ESTABLISH A REGULATORY ASSET ) PROTECTIVE AGREEMENT
)
)
l. WHEREAS, Rocky Mountain Power, a division of PacifiCorp, ("Providing
Pary"), the Idaho Public Utilities Commission Staff ("Staff') and the undersigned parties
(hereinafter jointly referred to as "Participating Parties") anticipate that they 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 in the above referenced docket (hereinafter
"Proceedings"), and
2. WHEREAS, Rocky Mountain Power and Participating Parties agree that entering
into a Protective Agreement wil expedite the production of documents; wil afford the necessary
PROTECTIVE AGREEMENT - 1
protection to valuable confidential, trade secret, and business information; wil also afford-
protection to Rocky Mountain Power and the Paricipating Parties' employees and/or
representatives in the Proceedings 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 Information which might be provided during 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 a trade secret, proprietary or confidential nature
(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. Access to and review of Confidential Information shall be
strictly controlled by the terms ofthis 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 conduct of the Proceedings, and then solely as contemplated
herein, 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 counsel of the undersigned
Participating Parties, employees, experts, agents or representatives of the undersigned parties, or
in the case of individual intervenors, the parties themselves, who have executed an Exhibit "A"
to this Agreement. Such information will be clearly marked and protected from unauthorized
public disclosure.
(d) Protective Agreement.
Confidential Information shall not be disclosed to any person who has not signed this
Protective Agreement (legal counsel representing Participating Parties) or the form that is
attached hereto as Exhibit "A" and incorporated herein. Exhibit "A" requires 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. A
validly executed Exhibit "A" must 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.
PROTECTIVE AGREEMENT - 2
2.(a)Copies.
No copies or transcriptions of the Confidential Information shall be made by the recipient
except as necessar 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 Party, all original documents and copies of the
Confidential Information shall be returned to the Providing Party within thirty (30) days after the
final settlement or conclusion of the Proceedings, including administrative or judicial review
thereof.
Unless otherwise ordered, Confidential Information, including transcripts or 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 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 provided 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. Nonwaiver 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 before 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 party may challenge the characterization of
any information, document, data or study claimed by the Providing Party to be a trade 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 nonconfidential summary, reformatting the information, etc.
PROTECTIVE AGREEMENT - 3
(b) Subseguent Challenge.
In the event that the parties cannot 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. 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.
( 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 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 hearing shall be marked "CONFIDENTIAL -- Subject to
Protective Agreement." 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 parties wil 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 §§ 9-335 et seq.). If 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 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 Commission's Order removing the restrctions of this Protective 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.
Provision is hereby made for receipt into evidence in these Proceedings of materials
claimed to be confidential in the following manner:
(1) If the requesting party intends to use Confidential Information or to
make substantive reference to Confidential Information supplied to it under this Protective
Agreement, it shall give reasonable prior notice of such intention to the Providing Party and shall
provide copies of the used Confidential Information or substantive reference to Confidential
Information only to the Providing Party, and such other parties, if any, who have executed this
Protective Agreement
(2) One (1) 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.
PROTECTIVE AGREEMENT - 4
(3) Only one (1) copy of the documents designated tõ be placed in a
sealed record shall be made, which copy shall be supplied by the Providing Party.
(4) The copy of the documents to be placed in the sealed record shall be
tendered by counsel for the Providing Party 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 marked "CONFIDENTIAL" 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 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. 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 Protective Agreement, 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 court having final jurisdiction.
(e) AppeaL.
Should an appeal be taken, sealed portions of the record in these Proceedings 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. Return.
Unless otherwise ordered, Confidential Information, including transcripts of any
depositions to which a claim of confidentiality is made, shall remain under seal, shall continue to
be subject to the protective requirements of this Protective Agreement, and 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, argument, or motions, 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 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 this
Protective Agreement or those who have executed the Exhibit "A" attached to this Protective
Agreement, and may, in turn, be disclosed by them only to individuals who have likewise
executed Exhibit "A."
8. Summary of Record.
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential Information referred to in any Decision or Order to be issued to the
public and the parties.
9. This Protective Agreement shall become effective on the date hereof.
DATED this _ day of April 2008.
ROCKY MOUNTAIN POWER
By:
IDAHO PUBLIC UTILITIES
COMMISSION STAFF
By:
Deputy Attorney General
Idaho Public Utilties Commission
Attorney for IPUC Staff
PROTECTIVE AGREEMENT - 6
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated
this docket and agree to be bound by the terms and conditions of such Agreement.
, in
Name
Employer or Firm
Business Address
Party
Date
EXHIBIT "A" TO PROTECTIVE AGREEMENT
CERTIFICATE OF SERVICE-
I HEREBY CERTIFY that on this IJ day of April, 2008, a tre and correct copy of the
foregoing document was served as indicated below:
Jean Jewell, Commission Secretar
Idaho Public Utilities Commission
472 W. Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Email: jean.jewell(fpuc.idaho.gov
( ) U.S. Mail
( ) Facsimile
( J Overnight Delivery
N. Hand Delivery
( ) Email
ATTORNEY'S CERTIFICATE CLAIM OF CONFIDENTIALITY FOR EXHIBITS IN
SUPPORT OF APPLICATION - 5