STATE OF MINNESOTA

BEFORE THE MINNESOTA PUBLIC UTILITIES COMMISSION

                        Gregory Scott                                                   Chair
                        Joel Jacobs                                                       Commissioner
                        Marshall Johnson                                              Commissioner
                        LeRoy Koppendrayer                                       Commissioner
                        Edward A. Garvey                                           Commissioner

 

 

In the Matter of a Commission Initiated                   )
Investigation Into U S WEST Communications        )          OAH Docket No. 12-2500-12631-2
Inc.’s Costs Related to Line Sharing Service           )          MPUC Docket No. P-421/CI-99-1665

 

 

PROTECTIVE AGREEMENT AND ORDER

 

WHEREAS, the parties in this proceeding may request each other to share information about or to produce certain valuable confidential, proprietary and business information including third party information, including documents, data, information, financial information, business plans, procedures, protocols, methodologies, measurements, computer models, work papers, analyses and other materials in this proceeding (“Confidential Information”);

 

WHEREAS, some of the Confidential Information requested or likely to be requested may constitute trade secret information as defined in Minn. Stat. § 13.37 (“Trade Secret Information”);

 

AND WHEREAS, the parties are willing to produce Confidential Information and/or Trade Secret Information which, in the party’s view, is legally protected Trade Secret Information and/or Confidential Information subject to the terms of this Agreement;

 

THEREFORE, in order to make these materials available for purposes of this proceeding, the parties have entered into the following Protective Agreement regarding the protection of confidential, trade secret and business information:

1.         (a)        Trade Secret Information and Confidential Information. All Trade Secret

 

Information and/or Confidential Information shall be furnished pursuant to the terms of this Agreement, and shall be treated by all persons accorded access thereto pursuant to this Agreement as constituting confidential, competitive, trade secret, and business information, and shall be used solely for the purpose of this proceeding and solely in accordance with this Agreement, and shall not be used or disclosed for any other purpose or in any other manner. All documentary material claimed to be Trade Secret Information or Confidential Information shall be so marked by the party or its affiliates by stamping each individual page with the designation “TRADE SECRET NOT FOR PUBLIC DISCLOSURE” or “CONFIDENTIAL INFORMATION  --   SUBJECT TO PROTECTIVE AGREEMENT” or with words of similar import. Materials marked in accordance with the Minnesota Public Utilities Commission’s August 18, 1999 Revised Procedures for Handling Trade Secret and Privileged Data (Commission’s Procedures) shall be appropriately marked for purposes of this protective agreement. All copies of documents so marked will be made on colored paper. For purposes hereof, notes made pertaining to or prepared as the result of a review of Trade Secret Information or Confidential Information shall be subject to the terms of this Agreement. Any Trade Secret Information or Confidential Information received in photographic, digital or electronic formats shall be identified as protected by the producing party by means appropriate to the medium and shall be handled by the recipient in a manner suitable to protect its confidentiality.

 

(b)        Use of Trade Secret or Confidential Information and Persons Entitled to Review. All Trade Secret Information or Confidential Information made available pursuant to this Agreement shall be given solely to counsel for the requesting party or other authorized persons who execute Exhibit A in a timely manner prior to their receipt of the Trade Secret Information and/or Confidential Information. Under no circumstances will any representative of a party be afforded access to trade secret information or confidential information if the person has responsibility for marketing, business planning, or strategic development of advanced services, including DSL or line sharing services. Trade Secret

Information and/or Confidential Information shall not be used or disclosed except for purposes of this proceeding. The Trade Secret Information and/or Confidential Information may not be used or referenced in other proceedings in Minnesota or in other jurisdictions. Unless otherwise provided in this Protective Agreement, all Trade Secret Information will be safeguarded and handled in accordance with the Commission’s Procedures.

(c)        Nondisclosure Agreement. Prior to giving access to Trade Secret Information and/or Confidential Information as contemplated in paragraph (a)-(b) above to any expert or witness, whether or not such expert or witness is a person designated to testify in any such proceeding, counsel for the party seeking review of the Confidential Information and/or Trade Secret Information shall deliver a copy of this Agreement to such person, and prior to disclosure such person shall agree in writing to comply with and be bound by this Agreement. In connection therewith, Confidential Information and/or Trade Secret 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 Exhibit A. The Exhibit A Nondisclosure Agreement (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 signatory¹s full name, permanent address and employer, and the name of the party with whom the signatory is associated. Such agreement shall be delivered to counsel for the providing party prior to the expert or witness gaining access to the Confidential Information and/or Trade Secret Information.

2.         Challenge to Confidentiality. Trade Secret Designation or Other Special Requests. This Agreement establishes a procedure for the expeditious handling of Confidential Information and/or Trade Secret Information. It shall not be construed as an agreement or ruling on the discoverability, confidentiality or trade secret designation of any such information or document. Any party at any time upon ten (10) days prior notice may seek by appropriate pleading to have documents or other matters that have been designated as Confidential Information or Trade Secret Information removed from the protective requirements of this Agreement or to have them handled in a manner differently than described in this Agreement (either for greater or lesser confidentiality protections). If the confidential or trade secret nature of this information is challenged, resolution of the issue shall be made by the AU or 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 or trade secret matter shall be present. The record of such in camera hearings shall be marked “TRADE SECRET NOT FOR PUBLIC DISCLOSURE” or “CONFIDENTIAL -- SUBJECT TO PROTECTIVE AGREEMENT,” unless the ALJ or Commission determines that the proceeding should not be classified as involving Trade Secret Information or Confidential Information.

3.         Use  of  Trade  Secret  Information  and/or  Confidential  Information  in Comments/Pleadings. Where reference to Trade Secret Information and/or Confidential Information is required in pleadings, cross-examinations, briefs, argument or motions, it shall be by citation of title or exhibit number or by some other nonconfidential description. Any further use of or substantive references to Trade Secret Information and/or Confidential Information shall be placed in a separate “Non-Public” copy of the pleading or brief and submitted to the Commission pursuant to the terms of the Commission’s Procedures. This “Non-Public” copy shall be served only on counsel of record (one copy each) who have signed a Nondisclosure Agreement. All the protections afforded in this Agreement apply to materials prepared and distributed under this paragraph.

4.         Use of Trade Secret Information and/or Confidential Information in Depositions. If, in the course of depositions, counsel for any party concludes that testimony or exhibits will involve Trade Secret Information and/or Confidential Information, counsel shall request that the court reporter record such testimony in a confidential transcript that is marked “TRADE SECRET

NOT FOR PUBLIC DISCLOSURE” or “CONFIDENTIAL - SUBJECT TO PROTECTIVE AGREEMENT.” All Exhibits which have been marked as involving Trade Secret Information and/or Confidential Information shall be attached to the confidential transcript and marked consistent with the Commission’s Procedures. Each party has the right to identify a transcript or exhibits as including Trade Secret information and/or Confidential Information pursuant to this paragraph for up to three business days after the deposition is completed

5.         Use of Trade Secret Information or Confidential Information in hearings or Commission Meetings. To the extent that reference is made to any Trade Secret Information or Confidential Information by counsel or persons with authorized access thereto during any aspects of Docket No. P-421/CI-99-1665 including, but not limited to, any public reference to such Trade Secret Information or Confidential Information should either be solely by title or its exhibit reference, or in such a manner as to not disclose the Trade Secret Information or Confidential Information. If reference to Trade Secret Information or Confidential Information is made in oral testimony, cross-examination, or argument, it shall be on such prior notice as is feasible to the affected party and, in any event, on sufficient notice to clear the room of persons not bound by this Agreement or by statutory restrictions on the disclosure of Trade Secret Information or Confidential Information.

6.         Return. Unless otherwise ordered, all Trade Secret and/or Confidential Information, including transcripts of any depositions to which a claim of “trade secret” status or confidentiality is made, shall remain under seal, shall continue to be subject to the protective requirements of this Agreement, and shall be returned to counsel for the providing party within 30 days after final settlement or conclusion of the applicable matter including administrative or judicial review thereof, unless otherwise agreed upon by the party that provided the Trade Secret Information or Confidential Information.

7.         Preservation of Confidentiality. All persons who may be entitled to receive, or who are afforded access to any Trade Secret and/or Confidential Information by reason of this Agreement shall neither use nor disclose the Trade Secret and/or Confidential Information for purposes of business or competition, or any other purpose other than the purposes of preparation for and conduct of these proceedings, and then solely as contemplated herein, and shall take reasonable precautions to keep the Trade Secret Information and/or Confidential Information secure and in accordance with the purposes and intent of this Agreement.

8.         Reservation of Rights. The parties hereto affected by the terms of this Protective Agreement further retain the right to question, challenge, and object to the admissibility of any and all data, information, studies and other matters furnished under the terms of this Protective Agreement in response to interrogatories, requests for information or documents or cross-examination on the grounds of relevancy or materiality.

9.         ALJ Approval

This Agreement will be filed with and ,approved by the Administrative Law Judge assigned to hear this matter.

10.       No party shall have waived its right to designate any documents, data, information, studies, or other materials as Trade Secret Information or Confidential Information by inadvertent disclosure, provided the disclosing party thereafter gives written notice to the recipients(s) of such information that it should have been designated as Trade Secret Information or Confidential Information. From and after receipt of such notice, the previously disclosed information subsequently identified as Trade Secret Information or Confidential Information shall be treated as Trade Secret Information or Confidential Information for purposes of this Agreement.

11.       This Agreement may be executed in one or more counterparts on separate signature pages. Each signature page shall be deemed an original and together all such signatures shall be considered one document.

 

Respectfully submitted,

 

 

Jason D. Topp

U S WEST, Inc.

200 South Fifth Street, Room 395

Minneapolis, MN 55402

 

 

Dated:

Covad Communications

 

 

Dated:

New Edge Network, Inc.

 

 

Dated:

Northpoint Communications

 

 

Dated:

JATO Communications

 

 

Dated:

Onvoy

 

 

Dated:

Rhythms Links, Inc.

 

 

Dated:

Sprint Communications Company L.P.

 

 

Dated:

AT&T Communications

 

 

Dated:

MCI WorldCom, Inc.

 

Order

 

The foregoing Protective Agreement is hereby approved and shall apply during the course of proceedings in MPUC Docket No. P-421/CI-99-1665.

 

 

Dated this ____ day of February, 2000.

Steve M. Mihalchick

Administrative Law Judge

Office of Administrative Hearings

100 Washington Avenue South,

Suite 1700

Minneapolis, MN 55401-2138

 

 

 

I have reviewed the foregoing Protective Agreement dated January ____, 2000, in Minnesota Public Utilities Commission Docket No. P-421/CI-99-1665, with respect to the review and use of Trade Secret Information and/or Confidential Information as defined therein, and in consideration of being granted access to such information, which I could not otherwise readily obtain, I agree to be bound by the terms and conditions of such Agreement.

 

 

 

Signature

 

 

Name (type or print)

 

 

 

Residence Address

 

 

 

Employer or Firm

 

 

 

[Title or description of position]

 

 

Business Address

 

 

Party

 

 

Date