20090323Motion for Protective Order.pdf

~~l~OUNTAIN R.E
2009 MAR 23 AM 10: '2
201 South Main, Suite 230
Salt Lake City, Utah 84111
March 23, 2009
VL OVERNIGHT DELIVERY
Jean D. Jewell
Commssion Secreta
Idaho Public Utilties Commssion
472 W. Washigton
Boise, il 83702
Re: Case No. P AC-E-08-08
In the Matter of the Application of Rocky Mountain Power for Approval of an Energy
Cost Adjustment Mechansm
Dear Ms. Jewell:
Please fmd enclosed for filing an original and nie copies of Rocky Mountain Power's Motion
for Protecive Order in the above-referenced matter.
All formal correspondence and questions regardig ths Motion should be addressed to:
Ted Weston
Rocky Mountain Power
201 South Mai, Suite 2300
Salt Lake City, Uta 84111
Telephone: [phone]
Fax: [phone]
Email: ted.westonW4pacificorp.com
Danel Solander
Rocky Mounta Power
201 South Main Street, Suite 2300
Salt Lake City, Uta 84111
Telephone: [phone]
Fax: [phone]
Email: Danel.solanderW4pacificorp.com
Informal inquiries may be directed to Ted Weston, Idaho Regulatory Manager at (801) 220-
2963.
Very try your,
~/1Y
J ffe K. Laren
Vice President, Reguation
Enclosures
f". f" thi.:.
Danel E. Solander
Yvonne R. Hogle
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
Telephone No. [phone]
Facsimile No. [phone]
danel.solanderW4pacificorp.com
yvonne.hogleW4pacificorp.com
2009 MAR 23 A1110: /2
Attorneys for Rocky Mountain Power
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF )
ROCKY MOUNTAIN POWER FOR APPROVAL )
OF AN ENERGY COST ADJUSTMNT)MECHAISM )
)
)
)
CASE NO. PAC-E-08-08
PETITION FOR CONFIDENTIAL TREATMENT
AND PROTECTIVE ORDER
Rocky Mountain Power, pursuat to Idao Public Utilties Commssion Rule of
Procedur IDAPA 31.01.01.067 and Rule 26(c) of the Idaho Rules of Civil Procedure, hereby
submits its petition for confdential tratment and a protective order to the Idao Public Utilities
Commission ("Commssion") requesting the Commission issue a protective order designed to
govern the exchage and treatment of information identified by a par as confdential durng the
course of ths above-captioned proceeding. In support of its petition, Rocky Mounta Power
states as follows:
1
1. Rocky Mountan Power anticipates that it will be necessar for the paries to ths
proceeding to exchange inormation that may be deemed by a pary to be trade secret,
commercially sensitive, confdential business informtion, or inormation tht is otherwse
sensitive in natue such that the disclosure of the inormation would jeopardize the interests of
the par that has been requested to disclose the information, and the unimited disclosure of
which could result in economic or other ha to the disclosing par.
2. In order to facilitate a full and timely review of the application to increase retail
electrc service rates by the Commssion, Rocky Mountain Power requests that the Commission
approve, for use in this proceeding, a protective order in the form attached hereto as Exhbit A, to
faciltate the exchange of confdential information among the paries under terms and conditions
that assur the confdential inormation will not be improperly used or disclosed.
3. The Company anticipates that data requests submitted by paries may require
responses that contan Confdential inormation. Accordingly, Rocky Mountain Power requests
tht the Commission consider those documents Confdential and treat them in accordance with
the proposed protective order. It is anticipated that such requests will be made in the near futue
and, as a result, the company has filed ths petition so as not to delay the disclosure or exchange
of information when such a request is in fact made.
4. Ths petition is fied pursuat to Idaho Public Utilties Commission Rule of
Procedure IDAPA 31.01.01.067 and Rule 26(c) of the Idaho Rules of Civil Procedur, which
authorize the Commssion, upon a showing of good cause, to deem confdential inormation fied
with the Commission or in the custody of the Commssion or its sta and to issue a protective
order governng the disclosure and treatment of the confdential information.
2
5. Rocky Mountain Power fuer submits that it is anticipated that pares to ths
proceeding will request the disclosure or exchage of cert information that will jeopardize the
interests and cause irreparable injur to the company because the inormation is either protected
by contractu obligations or is sensitive to the natue of the company's business.
Atthed hereto as Exhbit A is a proposed protective order tht Rocky Mountain Power requests
that the Commission issue. Rocky Mountain Power submits tht the atthed form of protective
order is appropriate for protectig the interests of all paries to this proceeding, and requests tht
the Commssion issue the proposed protective order to govern the treatment of information
designted by a pary to ths proceeding as confdential.
WHREFORE, Rocky Mounta Power respectfully requests the following:
1. That the Commssion approve Rocky Mountai Power's petition.
2. Tht the Commission issue a protective order in substatially the same form as
the proposed protective order attched hereto as Exhbit A.
DATED ths 23rd day of March 2009.
Respectfuly submitted,
ROCKY MOUNTAIN POWERD~~1/
Dael E. Sola !
Yvonne R. Hogle
201 South Main Street, Suite 2300
Salt Lake City, Uta 84111
Telephone No. [phone]
Facsimile No. [phone]
danel.solander~pacificorp.com
yvonne.hogleCiacificorp.com
3
Attorneys for Rocky Mountain Power
-BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION-
)
IN THE MATTER OF THE APPLICATION )
OF ROCKY MOUNTAIN POWER FOR)
APPROV AL OF AN ENERGY COST)
ADJUSTMENT MECHANISM )
)
CASE NO. PAC-E-08-08
PROTECTIVE ORDER
ISSUED:
By the Commission:
On March 23, 2009, Rocky Mountain Power submitted a Motion for Protective Order in
the above-entitled proceeding. The Commission finds that sufficient grounds exist for entry of a
protective order.
NOW, THEREFORE, IT IS HEREBY ORDERED, that:
1. (A) Confidential Information. All documents, data, information, studies and other
materials furnished, or made available pursuant to any interrogatories, or requests for
information, subpoenas, depositions, or other modes of discovery that are claimed by the paries
to be of a trade secret or confidential nature shall be furnished pursuant to the terms of this
Order, and shall be treated by all persons accorded access thereto pursuant to this Order as
constituting trade secret, confidential commercial, or otherwise protected information
(hereinafter referred to as "Confidential Infomiation"), and shall neither be used nor disclosed
except for the purpose of this proceeding, and solely in accordance with this Order. All
material claimed to be Confidential Information shall be so marked by the pary or its affiliates
by stamping the same with the designation, "CONFIDENTIAL - - SUBJECT TO
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PROTECTIVE ORDER" or "CONFIDENTIAL - - SUBJECT TO PROTECTIVE ORDER
IN CASE NO. P AC-E-08-08." All copies of documents so marked wil be made on yellow
paper. Parties fiing electronically should fie both a confidential and non-confidential version
clearly marked as such. For purposes hereof, any notes made pertaining to or as the result of a
review of Confidential Information shall also be considered Confidential Information and subject
to the terms ofthis Order.
(B) Use of Confidential Information and Persons Entitled to Review. All
Confidential Information made available pursuant to this Order shall be given solely to counsel
for the paries (including counsels' paralegals, administrative assistants and clerical staff to the
extent necessary for performance of work on this matter), which shall include the Commission
and its Staff ("Commission"), and shall not be used nor disclosed except for the purpose of this
proceeding; provided, however, that access to any specific Confidential Information may be
authorized by counsel, solely for the purose of this proceeding, to those persons indicated by
the paries as being their experts in this matter (including such experts' administrative assistants
and clerical staff, and persons employed by the paries, to the extent necessary for performance
of work on this matter). However, persons designated as experts shall not include persons
employed by the paries who could use the information in their normal job functions to the
competitive disadvantage of the pary providing the Confidential Information. Any member of
the Commission or its Staff may have access to any Confidential Information made available
pursuant to this Order and shall be bound by the terms of this Order, except for the requirement
of signing a nondisclosure agreement. Further, nothing herein shall prevent disclosure as
required by law pursuant to interrogatories, administrative requests for information or
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documents, subpoena, civil investigative demand or similar process, provided, however, that the
party being required to disclose Confidential Information shall promptly give prior notice by
telephone and written notice of such requirement of disclosure by facsimile and overnight mail to
the pary that provided such Confidential Information, addressed to the attorneys of record for
such pary, so that the party that provided the Confidential Information may seek an appropriate
protective order. The disclosing party wil not oppose action by, and wil cooperate with the
party that provided the Confidential Information to obtain an appropriate protective order or
other reliable assurance that confidential treatment wil be accorded that Confidential
Information.
(C) Nondisclosure Agreement. Prior to giving access to Confidential Information,
as contemplated in paragraph 1 (B) above, to counselor any expert designated to testify in this
proceeding, counsel for the party seeking review of the Confidential Information shall deliver a
copy of this Order to such person and, prior to disclosure such person shall agree in writing to
comply with and be bound by this Order. Confidential Information shall not be disclosed to any
person who has not signed a Nondisclosure Agreement in the form which is attached hereto and
incorporated herein as Appendix A. The Nondisclosure Agreement (Appendix A) shall require
the person to whom disclosure is to be made to read a copy ofthis Protective Order 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, and the
name of the pary with whom the signatory is associated. Such agreement shall be delivered to
counsel for the providing pary prior to the expert gaining access to the Confidential Information.
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(D) Additional protective measures. A provider of documents and information
may claim that additional protective measures, beyond those required under this Protective
Order, are warranted for certain confidential material, referred to as highly sensitive documents
and information. In such case, the provider shall identify such documents and information and
shall inform the requester of such documents and information of their claimed highly sensitive
nature as soon as possible. The provider of the requested information shall also petition the
Commission for an order granting additional protective measures, which the petitioner believes
are warranted for the claimed highly sensitive documents and information that is to be produced
in response to an information request. The provider shall set forth the particular basis for: the
claim, the need for the specific, additional protective measures, and the reasonableness of the
requested, additional protection. A pary who would otherwise receive the documents and
information under the terms of this Protective Order may respond to the petition and oppose or
propose alternative protective measures to those requested by the provider of the claimed highly
sensitive documents and information. Disputes between the parties shall be resolved pursuant to
Commission Order pursuant to Paragraph 2 of this Protective Order.
2. (A) Challenge to Confidentiality or Proposed Additional Protective Measures.
This Order establishes a procedure for the expeditious handling of Confidential Information; it
shall not be construed as an agreement, or ruling on the confidentiality of any document.
(B) In the event that the parties hereto are unable to agree that certain documents,
data, information, studies, or other matters constitute Confidential Information, are highly
sensitive documents and information referred to in paragraph 1 (D) above, or agree on the
appropriate treatment of highly sensitive documents and information, the party objecting to the
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classification as Confidential Information or the pary claiming highly sensitive documents and
information and the need for additional protective measures shall forthwith submit the said
matters to the Commission for its review pursuant to this Order. When the Commission rules on
the question of whether any documents, data, information, studies, or other matters submitted to
them for review and determination are Confidential Information, are highly sensitive documents
and information, or the appropriate additional protection to be afforded for specific highly
sensitive documents and information, the Commission wil enter an order resolving the issue.
(C) Any party at any time upon ten (10) days prior notice may seek by appropriate
pleading, to have documents that have been designated as Confidential Information, or which
were accepted into the sealed record in accordance with this Order, removed from the protective
requirements of this Order, or from the sealed record and placed in the public record. If the
confidential or proprietary nature of this information is challenged, .resolution of the issue shall
be made by the Commission after proceedings in camera, which shall be conducted under
circumstances such that only those persons duly authorized hereunder to have access to such
confidential matter shall be present. The record of such in camera hearngs shall be marked
"CONFIDENTIAL - - SUBJECT TO PROTECTIVE ORDER IN CASE NO. P AC-E-08-
08." It shall be transcribed only upon agreement by the parties, or Order of the Commission, and
in that event shall be separately bound, segregated, sealed, and withheld from inspection by any
person not bound by the terms of this Order, unless and until released from the restrictions of this
Order, either through agreement of the paries, or after notice to the paries and hearing, pursuant
to an Order of the Commission. In the event the Commission should rule in response to such a
pleading that any information should be removed from the protective requirements of this Order,
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or from the protection of the sealed record, such Order of the Commission shall not be effective
for a period often (10) days after entry of the Order.
3. (A) Receipt into Evidence. Provision is hereby made for receipt of evidence in
this proceeding under seaL. At least ten (10) days prior to the use of or substantive reference to
any Confidential Information as evidence, the pary intending to use such Confidential
Information shall make that intention known to the providing pary. The requesting pary and the
providing party shall make a good faith effort to reach an agreement so that the information can
be used in a manner that wil not reveal its trade secret, confidential or proprietary nature. If
such efforts fail, the providing party shall separately identify, within five (5) business days,
which portions, if any, of the documents to be offered or referenced on the record containing
Confidential Information shall be placed in the sealed record. Only one (l) copy of documents
designated by the providing party to be placed in the sealed record shall be made and only for
that purose. Otherwise, paries shall make only general references to Confidential Information
in these proceedings.
(B) SeaL. While in the custody of the Commission, these materials shall be
marked "CONFIDENTIAL - - SUBJECT TO PROTECTIVE ORDER IN CASE NO. P AC-
E-08-08," and due to their nature they shall not be considered as records in the possession of or
retained by the Commission within the meaning of the open meetings or public records statutes.
(C) In Camera Hearing. Any Confidential Information that must be orally
disclosed to be placed in the sealed record in this proceeding shall be offered in an in camera
hearing, attended only by persons authorized to have access to the Confidential Information
under this Order. Similarly, cross-examination on or substantive reference to Confidential
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Information, as well as that portion of the record containing references thereto, shall be marked
and treated as provided herein.
(D) AppeaL. Sealed portions of the record in this proceeding may be forwarded to
any court of competent jurisdiction on appeal in accordance with applicable rules and
regulations, but under seal as designated herein, for the information and use of the court.
(E) Retur. Unless otherwse 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 Order, and shall be
returned to counsel for the providing part within 30 days after final settlement, or conclusion of
this matter including administrative, or judicial review thereof. Alternatively, a party receiving
Confidential Information pursuant to the terms of the Order may certify, within 30 days after
final settlement, or conclusion of this matter including administrative, or judicial review thereof,
that the Confidential Information has been destroyed. Counsel who are provided access to
Confidential Information pursuant to the terms of this Order may retain their notes, work papers
or other documents that would be considered the attorneys' work product created with respect to
their use and access to Confidential Information in this docket. An expert witness, accorded
access to Confidential Information pursuant to this Order, shall provide to counsel for the pary
on whose behalf the expert was retained or employed, the expert's notes, work papers or other
documents pertaining or relating to any Confidential Information. Counsel shall retain these
expert's documents with counsel's documents. In order to facilitate their ongoing regulatory
responsibilty, this paragraph shall not apply to the Commission or its Staff, which may retain
Confidential Information obtained under this Order subject to the other terms of this Order. The
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providing pary shall be notified in advance by any state regulatory agency which intends to use,
release or disclose any of the retained Confidential Information in any subsequent case.
4. Use in Pleadings. Where reference to Confidential Information in the sealed
record is required in pleadings, cross;.examinations, briefs, arguments, or motions, it shall be by
citation of title, or exhibit number, or by some other nonconfidential description. Any furher
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 under seaL. This sealed section shall
be served only on counsel of record (one copy each), who have signed a Nondisclosure
Agreement. All the protections afforded in this order apply to materials prepared and distributed
under this paragraph.
5. (A) Use in Decisions and Orders. The Commission wil attempt to refer to
Confidential Information in only a general or conclusionary form and wil avoid reproduction in
any decision of Confidential Information to the greatest possible extent. If it is necessary for a
determination in this proceeding to discuss Confidential Information other than in a general or
conclusionary form, it shall be placed in a separate section of this Order, or Decision, under seaL.
This sealed section shall be served only on counsel of record (one copy each) who have signed a
Nondisclosure Agreement. Counsel for other paries shall receive the cover sheet to the sealed
portion and may review the sealed portion on file with the Commission once they have signed a
Nondisclosure Agreement.
6. Segregation of Files. Those pars of any writing, depositions reduced to writing,
written examination, interrogatories and answers thereto, or other written references to
Confidential Information in the course of discovery, if fied with the Commission, wil be sealed
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by the Commission, segregated in the fies of the Commission, and withheld from inspection by
any person not bound by the terms of this Order, unless such Confidential Information is released
from the restrictions of this Order, either through agreement of the paries, or after notice to the
paries and hearing, pursuant to the Order of the Commission and/or final order of a court having
jurisdiction.
7. Preservation of Confidentiality. All persons who may be entitled to receive, or
who are afforded access to any Confidential Information by reason of this Order shall neither
use, nor disclose the Confidential Information for purposes of business or competition, or any
other purpose other than the puroses of preparation for and conduct of this proceeding, and then
solely as contemplated herein, and shall take reasonable precautions to keep the Confidential
Information secure in accordance with the puroses and intent of this Order.
8. Reservation of Rights. The parties hereto affected by the terms of this Protective
Order further retain the right to question, challenge, and object to the admissibilty of any and all
data, information, studies and other matters furnished under the terms of this Protective Order in
response to interrogatories, requests for information, other modes of discovery, or cross-
examination on the grounds of relevancy or materiality. This Order shall in no way constitute
any waiver of the rights of any party to contest any assertion by a pary, or finding by the
Commission that any information is a trade secret, confidential, or privileged, and to appeal any
assertion or finding.
9. The provisions of this Order are specifically intended to apply to data, or
information supplied by or from any pary to this proceeding, and any non-pary that supplies
documents pursuant to process issued by this Commission.
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DATED at Boise, Idaho this _ day of ,2009.
APPENDIX A
~~ PROTECTIVE ORDER--
CASE NO. P AC-E-08-08
I have reviewed the Protective Order entered by the Idaho Public Utilties
Commission in Case No. PAC-E-08-08 with respect to the review and use of confidential
information and agree to comply with the terms and conditions of the protective order.
Signature
Name (type or print)
Residence Address
Employer or Firm
Business Address
Party Represented
Date Signed
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