|
3-2500-17033-2 E-002/GR-05-1428 |
STATE
OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
|
PROTECTIVE
AGREEMENT AND ORDER |
BACKGROUND:
1. This matter was referred to the Office of
Administrative Hearings by the Minnesota Public Utilities Commission
(Commission) for a contested case hearing in its Notice and Order for Hearing issued
on December 30, 2005, in the above-entitled docket.
2. During the proceeding in this matter,
Parties may file, request and use trade secret information or nonpublic data,
as defined by Minnesota Statutes Chapter 13.01 et seq. (Trade Secret Information or Nonpublic Data).
3. Minnesota Statutes § 14.60,
subdivision 2, allows the Administrative Law Judge in a contested case to
conduct a closed hearing to discuss trade secret or nonpublic data, issue
necessary Protective Agreements and Orders, and seal all or part of the hearing
record.
ACCORDINGLY, IT
IS HEREBY ORDERED:
1. (a) Trade
Secret Information and Nonpublic Data.
All Trade Secret Information and/or Nonpublic Data shall be furnished
pursuant to the terms of this Protective Agreement and Order, and shall be
treated by all persons accorded access thereto pursuant to this Protective
Agreement and Order 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 Protective Agreement and Order,
and shall not be used or disclosed for any other purpose or in any other
manner. In accordance with the
Commission’s September 1, 1999, Revised
Procedures for Handling Trade Secret and Privileged Data (Commission’s
Procedures), all documentary material claimed to be Trade Secret Information or
Nonpublic Data shall be marked substantially as follows by stamping each
individual page with the designation “CONTAINS
TRADE SECRET INFORMATION— NONPUBLIC DATA—USE RESTRICTED PER PROTECTIVE ORDER IN
DOCKET NO. E-002/GR-05-1428.” 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 Nonpublic Data
shall be subject to the terms of this Protective Agreement and Order. Any Trade Secret Information or Nonpublic Data
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 Nonpublic Data and Persons Entitled to Review. All Trade Secret Information or Nonpublic Data
made available pursuant to this Protective Agreement and Order shall be given
solely to counsel for the requesting party or other authorized persons who are
designated by counsel as being the party’s experts or witnesses in this
proceeding and who execute Exhibit A in a timely manner prior to their receipt
of the Trade Secret Information and/or Nonpublic Data. Trade Secret Information and/or Nonpublic Data
shall not be used or disclosed except for purposes of this proceeding. The Trade Secret Information and/or Nonpublic
Data may not be used or referenced in other proceedings in
(c) Nondisclosure Protective Agreement and
Order. Prior to giving access to
Trade Secret Information and/or Nonpublic Data as contemplated in paragraphs
(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 Trade Secret Information and/or Nonpublic Data shall
deliver a copy of this Protective Agreement and Order to such person; and prior
to disclosure such person shall agree in writing to comply with and be bound by
this Protective Agreement and Order. In
connection therewith, Trade Secret Information and/or Nonpublic Data 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 and until
the 24-hour notice required by this paragraph has been given. The Exhibit A Nondisclosure Agreement shall
require the person to whom disclosure is to be made to read a copy of this Protective
Agreement and Order and to certify in writing that he or she has reviewed the
same and has consented to be bound by its terms. The Nondisclosure Agreement shall contain the
signatory’s full name, permanent address and employer, and the name of the
party with whom the signatory is associated. Such Nondisclosure Agreement shall
be delivered to counsel for the providing party at least 24 hours, excluding
weekends and holidays, prior to the expert or witness gaining access to the
Trade Secret Information and/or Nonpublic Data.
If counsel for the providing party notifies the Administrative Law Judge
of an objection within the 24 hours, no Trade Secret Information and/or
Nonpublic Data shall be provided to the expert or witness until so ordered by
the Administrative Law Judge.
2. Challenge to Non-Publicity, Trade
Secret Designation or Other Special Requests. This Protective Agreement and Order
establishes a procedure for the expeditious handling of Trade Secret
Information and/or Nonpublic Data. 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 Trade Secret Information or Nonpublic
Data removed from the protective requirements of this Protective Agreement and
Order or to have them handled in a manner differently than described in this
Protective Agreement and Order (either for greater or lesser confidentiality
protections). If the trade secret or
nonpublic nature of this information is challenged, resolution of the issue
shall be made by the Administrative Law Judge 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 trade secret or nonpublic matter shall be present. The record of such in camera hearings shall be marked “TRADE SECRET INFORMATION—NONPUBLIC DATA—USE RESTRICTED PER PROTECTIVE
AGREEMENT IN DOCKET NO. E-002/GR-05-1428,” unless the ALJ or Commission
determines that the proceeding should not be classified as involving Trade
Secret Information or Nonpublic Data.
3. Use of Trade Secret Information and/or
Nonpublic Data in Comments or Pleadings.
Where reference to Trade Secret Information and/or Nonpublic Data 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 Nonpublic Data shall
be placed in a separate “Nonpublic” copy of the pleading or brief and submitted
to the Commission or Office of Administrative Hearings pursuant to the terms of
the Commission’s Procedures. This “Nonpublic”
copy shall be served only on counsel of record (one copy each) who have signed
a Nondisclosure Agreement. All the protections afforded in this Protective
Agreement and Order apply to materials prepared and distributed under this
paragraph.
4. Use of Trade Secret Information and/or
Nonpublic Data in Depositions. If,
in the course of depositions, counsel for any party concludes that testimony or
exhibits will involve Trade Secret Information and/or Nonpublic Data, counsel
shall request that the court reporter record such testimony in a confidential
transcript that is marked “TRADE SECRET INFORMATION—NONPUBLIC
DATA—USE RESTRICTED PER PROTECTIVE AGREEMENT IN DOCKET NO. E-002/GR-05-1428.” All Exhibits which have been marked as
involving Trade Secret Information and/or Nonpublic Data 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
Nonpublic Data pursuant to this paragraph for up to three business days after
the deposition is completed.
5. Use of Trade Secret Information or Nonpublic
Data in Hearings or Commission Meetings.
The Receiving Party shall not use Trade Secret and/or Nonpublic Data in
a hearing without first (a) providing prior notice to the disclosing party
regarding the information to be used and (b) conferring with the disclosing party
regarding limitations or procedures that can be used to avoid disclosing the
confidential aspects of the information at issue to persons not otherwise
entitled to receive such information. If
the parties cannot reach agreement regarding the use of such information, then
the dispute shall be submitted to the Administrative Law Judge or the
Commission before the information is used or publicly disclosed. Without limiting the foregoing, no party
shall refer to Trade Secret and/or Nonpublic Data on oral testimony,
cross-examination or argument except in accordance with this paragraph.
6. Return. Unless otherwise ordered, all Trade Secret
and/or Nonpublic Data, including transcripts of any depositions to which a
claim of “trade secret” or “nonpublic” status is made, shall remain under seal,
shall continue to be subject to the protective requirements of this Protective
Agreement and Order, and, except as provided in Paragraph 10, shall be returned
to counsel for the disclosing party within 30 days after final settlement or
conclusion of the applicable matter including administrative or judicial review
thereof, unless otherwise agreed by the disclosing party.
7. Preservation of Non-Publicity. All persons who may be entitled to receive,
or who are afforded access to any Trade Secret and/or Nonpublic Data by reason
of this Protective Agreement and Order shall neither use nor disclose the Trade
Secret and/or Nonpublic Data 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 Nonpublic Data secure
and in accordance with the purposes and intent of this Protective Agreement and
Order.
8. Reservation of Rights. The parties hereto affected by the terms of
this Protective Agreement and Order 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 and Order in response to interrogatories, requests for information or
documents or cross-examination on the grounds of relevancy or materiality.
9. Inadvertent Disclosure. No party shall have waived its right to
designate any documents, data, information, studies, or other materials as
Trade Secret Information or Nonpublic Data by inadvertent disclosure, provided
the disclosing party thereafter gives written notice to the recipient(s) of
such information that it should have been designated as Trade Secret
Information or Nonpublic Data. From and
after receipt of such notice, the previously disclosed information subsequently
identified as Trade Secret Information or Nonpublic Data shall be treated as
Trade Secret Information or Nonpublic Data for purposes of this Protective
Agreement and Order.
10. Information
Provided to State Agencies. The
files of the Public Utilities Commission, the Office of Administrative
Hearings, the Department of Commerce, the Office of the Attorney General, and
other state agencies containing trade secret data or otherwise protected
information shall be treated as required by Minn. Stat. §§ 13.01 et seq. and 138.161 et seq. and shall not be subject to the return requirements of this
Protective Agreement and Order. Notwithstanding the
restrictions set forth in paragraphs 1-9 above, employees of the state agencies
are not required to sign Exhibit A to receive Trade Secret or Non-Public
information.
DATED this 20th day of January, 2006.
|
s/Kathleen
D. Sheehy |
|
|
KATHLEEN D.
SHEEHY |
|
|
|
Administrative
Law Judge |
|
|
|
3-2500-17033-2 E-002/GR-05-1428 |
STATE
OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
|
EXHIBIT A NONDISCLOSURE AGREEMENT |
I, the
undersigned, hereby acknowledge that I have read the attached Protective Agreement
and Order dated January 20, 2006, in Minnesota Public Utilities Commission
Docket No. E-002/GR-05-1428, OAH Docket 3-2500-17033-2, and understand the
terms thereof and agree to be bound by all such terms. Without limiting the generality of the foregoing,
I agree not to disclose to any person or entity not authorized to receive
materials designated “TRADE SECRET INFORMATION—NONPUBLIC
DATA—USE RESTRICTED PER PROTECTIVE AGREEMENT IN DOCKET NO. E-002/GR-05-1428”
under the terms of said Protective Agreement and Order, or any copies or
extracts of information derived therefrom, which have been disclosed to
me. I further agree to use any such
materials disclosed to me solely for the purpose of this proceeding and for no
other purpose.
I hereby
submit myself to the jurisdiction of the Office of Administrative Hearings in
Date: ______________, 2006
____________________________________
Signature
____________________________________
Type or Print
Name
____________________________________
Address
____________________________________
Name of
Employer
____________________________________
Name of Party