STATE
OF MINNESOTA
BEFORE
THE PUBLIC UTILITIES COMMISSION
LeRoy Koppendrayer Chair
Marshall Johnson Commissioner
Phyllis A. Reha Commissioner
Kenneth A. Nickolai Commissioner
Thomas Pugh Commissioner
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In the
Matter of CLECs’ Request for Commission Approval of ILEC Wire Center
Impairment Analysis In the
Matter of a Commission Investigation Identifying Wire Centers in which Qwest
Corporation Must Offer High-Capacity Loop or Transport UNEs at Cost-Based
Rates |
MPUC
Docket No. P-5692, 5340, 5643,
5323, 465, 6422/M-06-211 MPUC Docket No. P-999/CI-06-685
OAH Docket No. 11-2500-17274-2 |
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PROTECTIVE
ORDER
The
purpose of this Protective Order (“Order”) is to facilitate the disclosure of documents
and information during the course of these proceedings and to protect
Confidential Information and Highly Confidential Information. Access to and review of Confidential
Information and Highly Confidential Information by parties other than government
agencies shall be strictly controlled by the terms of this Order. The parties other than government agencies
have represented and agree that Confidential Information and Highly
Confidential Information as defined in this Order constitute “trade secret information”
under Minn. Stat. § 13.37, subd. 1(b), and “nonpublic data” under Minn. Stat. §
13.02, subd. 9. The parties other than
government agencies have acknowledged that the government agencies involved in
this docket, which include the Minnesota Public Utilities Commission (“Commission”),
the Office of Administrative Hearings (“OAH”), the Minnesota of Commerce (“Department”),
and the Office of Attorney General (“OAG”) and Office of Attorney General-Residential
and Small Business Utilities Division (“OAG-RUD”) are subject to the Minnesota
Government Data Practices Act (“MGDPA”)[1]
and records retention requirements of Minn. Stat. §§ 138.163-138.226. The parties other than government agencies,
which parties are hereinafter referred to as “parties”, “persons” or “entities”
have further agreed to the terms of paragraphs one through twelve below, and,
upon that agreement, and all the files, records and proceedings herein, it is
hereby ordered:
1. (a) Confidential
Information. All documents, data,
studies and other materials furnished pursuant to any requests for information,
subpoenas or other modes of discovery (formal or informal), and including
depositions, and other requests for information, 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 providing party by
stamping the same with a "NONPUBLIC DOCUMENT – CONTAINS TRADE SECRET
DATA" designation. All copies of
documents so marked shall be made on yellow paper. In addition, all notes or other materials
that refer to, derive from, or otherwise contain parts of the Confidential
Information will be marked by the receiving party as “NONPUBLIC DOCUMENT –
CONTAINS TRADE SECRET DATA.” Access to
and review of Confidential Information shall be strictly controlled by the
terms of this Order.
(b)
Use of
Confidential Information – Proceedings. All persons who may be entitled to review, 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 purpose other than the purpose of preparation
for and conduct of proceeding in the above-captioned docket or before the
Federal Communications Commission ("FCC"), and all subsequent appeals
("proceedings"), and shall keep the Confidential Information secure
as trade secret, confidential or proprietary information and in accordance with
the purposes, intent and requirements of this Order.
(c)
Persons Entitled
to Review. Each party that receives Confidential
Information pursuant to this Order must limit access to such Confidential
Information to (1) attorneys employed or retained by the party in proceedings
and the attorneys’ staff; (2) experts, consultants and advisors who need access
to the material to assist the party in proceedings; (3) only those employees of
the party who are directly involved in these proceedings, provided that counsel
for the party represents that no such employee is engaged in the sale or
marketing of that party's products or services.
In addition, access to Confidential Information may be provided to the
government agencies, their counsel, employees, consultants and experts.
(d)
Nondisclosure
Agreement. Any party, person, or entity that receives
Confidential Information pursuant to this Order shall not disclose such
Confidential Information to any person, except persons who are described in
section 1(c) above and who have signed a nondisclosure agreement in the form
which is attached hereto and incorporated herein as Exhibit A. Court reporters whose activities are not
regulated by Minn. Stat. Ch. 13 shall also be required to sign an Exhibit A upon
written request of a party and to comply with the terms of this Order.
The
nondisclosure agreement (Exhibit A) shall require the person(s) to whom
disclosure is to be made to read a copy of this Protective Order and to certify
in writing that they have reviewed the same and have consented to be bound by
its terms. The nondisclosure agreement
shall contain the signatory’s full name, employer, business address and the
name of the party with whom the signatory is associated. Such agreement shall be delivered to counsel
for the providing party before disclosure is made, and if no objection thereto
is registered to the Commission within five (5) days, then disclosure shall
follow. An attorney who makes
Confidential Information available to any person listed in section 1(c) above
shall be responsible for having each such person execute an original of Exhibit
A and a copy of all such signed Exhibit As shall be circulated to all other
counsel of record promptly after execution.
2. (a) Notes. Limited notes regarding Confidential
Information may be taken by counsel and experts for the express purpose of
preparing pleadings, cross-examinations, briefs, motions and arguments in
connection with this proceeding, or in the case of persons designated in
section 1(c) of this Protective Order, to prepare for participation in this
proceeding. Such notes shall then be
treated as Confidential Information for purposes of this Order, and shall be
destroyed after the final settlement or conclusion of the proceedings in
accordance with section 2(b) below.
(b) Destruction. All notes, to the extent they contain
Confidential Information and are protected by the attorney-client privilege or
the work product doctrine, shall be destroyed after the final settlement or
conclusion of the proceedings. The party destroying such Confidential
Information shall advise the providing party of that fact within a
reasonable time from the date of destruction.
3.
Highly
Confidential Trade Secret Information. Any person, whether a party or non-party, may
designate certain competitive Confidential Information as “Highly Confidential
Trade Secret Information” (herein referred to as “Highly Confidential
Information”) if it determines in good faith that it would be competitively
disadvantaged by the disclosure of such information to its competitors. Highly Confidential Information includes, but
is not limited to, documents, pleadings, briefs and appropriate portions of
deposition transcripts, which contain information regarding the market share
of, number of access lines served by, or number of customers receiving a
specified type of service from a particular provider or other information that
relates to marketing, business planning or business strategies.
Parties
must scrutinize carefully responsive documents and information and limit their
designations as Highly Confidential Information to information that truly might
impose a serious business risk if disseminated without the heightened
protections provided in this section.
The first page and individual pages of a document determined in good faith
to include Highly Confidential Information must be marked by a stamp that
reads:
NONPUBLIC
HIGHLY CONFIDENTIAL TRADE SECRET INFORMATION—USE RESTRICTED PER PROTECTIVE
ORDER
IN MPUC DOCKET
NOS. P-5692, 5340, 5643, 5323, 465, 6422/M-06-211 AND P-999/CI-06-685
Placing a “Highly Confidential” stamp on the first
page of a document indicates only that one or more pages contain Highly
Confidential Information and will not serve to protect the entire contents of a
multi-page document. Each page that
contains Highly Confidential Information must be marked separately to indicate
Highly Confidential Information, even where that information has been
redacted. The redacted versions of each
page containing Highly Confidential Information, and provided under seal, should
be submitted on paper distinct in color from non-confidential information and Confidential
Information described in section 1 of this Protective Order.
Parties
seeking disclosure of Highly Confidential Information must designate the
person(s) to whom they would like the Highly Confidential Information disclosed
in advance of disclosure by the providing party. Such designation may occur through the
submission of Exhibit B of the nondisclosure agreement identified in section
1(d). Parties seeking disclosure of
Highly Confidential Information shall not designate more than (1) a reasonable
number of in-house attorneys who have direct responsibility for matters
relating to Highly Confidential Information; (2) five in-house experts; and (3)
a reasonable number of outside counsel and outside experts to review materials
marked as Highly Confidential.
Disclosure of Highly Confidential Information to Commissioners, Hearing
Officers and Commission Advisory Staff members shall be limited to persons to
whom disclosure is necessary. The
Exhibit B also shall describe in detail the duties or responsibilities of the
person being designated to see Highly Confidential Information and the person’s
role in the proceeding. Highly
Confidential Information may not be disclosed to persons engaged in strategic
or competitive decision making for any party, including the sale or marketing
of products or services on behalf of any party.
Any
party providing either Confidential Information or Highly Confidential
Information may object to the designation of any individual as a person who may
review Confidential Information and/or Highly Confidential Information. Such objection shall be made in writing to
counsel submitting the challenged individual’s Exhibit A or B within three (3)
business days after receiving the challenged individual’s signed Exhibit A or B.
Any such objection must demonstrate good cause to exclude the challenged
individual from the review of the Highly Confidential Information. Written response to any objection shall be
made within three (3) business days after receipt of an objection. If, after receiving a written response to a
party’s objection, the objecting party still objects to disclosure of either
Confidential Information or Highly Confidential Information to the challenged
individual, the Commission shall determine whether Confidential Information or
Highly Confidential Information must be disclosed to the challenged individual.
Copies
of Highly Confidential Information may be provided to the in-house attorneys,
in-house consultants, outside counsel and outside experts who have signed
Exhibit B, and to the Department and OAG-RUD, their employees and counsel, and
to their consultants and experts who have signed Exhibit B.
Persons
authorized to review the Highly Confidential Information will maintain the
documents and any notes reflecting their contents in a secure location to which
only designated counsel and experts have access. No additional copies will be made, except for
use during hearings and then such disclosure and copies shall be subject to the
provisions of this Order. Any testimony
or exhibits prepared that reflect Highly Confidential Information must be maintained
in a secure location until removed to the hearing room for production under
seal. Unless specifically addressed in
this section, all other sections of this Protective Order applicable to
Confidential Information also apply to Highly Confidential Information.
4. Small Company. Notwithstanding anything to the contrary in
this Order, persons authorized to review Confidential Information and Highly
Confidential Information on behalf of a company with less than 5,000 employees
shall be limited to the following: (1) a
reasonable number of in-house attorneys who have direct responsibility for
matters relating to Highly Confidential Information; (2) a reasonable number of
outside counsel; (3) the company’s employees and witnesses; and (4) independent
consultants acting under the direction of the company’s counsel or senior
management and directly engaged in this proceeding. Such persons do not include
individuals primarily involved in marketing activities for the company, unless
the party producing the information, upon request, gives prior written
authorization for that person to review the Confidential Information or Highly
Confidential Information. If the
producing party refuses to give such written authorization, the company may,
for good cause shown, request an order from the Administrative Law Judge (“ALJ”)
allowing that person to review the Confidential Information or Highly
Confidential Information. The producing
party shall be given the opportunity to respond to the company’s request before
an order is issued.
5. Masking. Information or documents provided in this
proceeding showing the identity of any fiber-based collocators in a wire center
must be designated as Confidential.
Similarly, any information or documents provided in this proceeding
showing the identity of a telecommunications carrier’s business lines or line
counts must be provided in a “masked” format, identifying the information using
a code, and must be designated as Confidential.
Each individual carrier will be provided its own code to
verify data concerning that carrier. The government agencies will be provided a
code for each carrier identified in the information or documents provided.
6. Objections to Admissibility. The furnishing of any document, data, study
or other materials pursuant to this Protective Order shall in no way limit the
right of the providing party to object to its relevance or admissibility in
proceedings before this Commission.
7. Challenge to Confidentiality. This Order establishes a procedure for the
expeditious handling of information that a party claims is Confidential or
Highly Confidential. It shall not be
construed as an agreement or ruling on the confidentiality of any
document. Any party may challenge the
characterization of any information, document, data or study claimed by the
providing party to be Confidential in the following manner:
(a)
A party seeking
to challenge the confidentiality of any materials pursuant to this Order shall
first contact counsel for the providing party and attempt to resolve any
differences by stipulation;
(b)
In the event
that the parties cannot agree as to the character of the information challenged,
any party challenging the confidentiality shall do so by appropriate
pleading. This pleading shall:
(i) Designate
the document, transcript or other material challenged in a manner that will
specifically isolate the challenged material from other material claimed as
confidential; and
(ii) State
with specificity the grounds upon which the documents, transcript or other
material are deemed to be non-confidential by the challenging party.
(c)
A ruling on the
confidentiality of the challenged information, document, data or study shall be
made by a Hearing Officer after proceedings in camera, which
shall be conducted under circumstances such that only those persons duly
authorized hereunder to have access to such Confidential materials shall be
present. This hearing shall commence no
earlier than five (5) business days after service on the providing party of the
pleading required by section 7(b) above.
(d)
The record of
said in camera hearing shall be marked “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER IN MPUC DOCKET NOS. P-5692, 5340, 5643, 5323, 465, 6422/M-06-211
AND P-999/CI-06-685.” Court reporter
notes of such hearing shall be transcribed only upon agreement by the parties
or order of the Hearing Officer 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.
(e)
In the event
that the Hearing Officer should rule that any information, document, data or
study should be removed from the restrictions imposed by this Order, no party
shall disclose such information, document, data or study or use it in the
public record for five (5) business days unless authorized by the providing
party to do so. The provisions of this
subsection are intended to enable the providing party to seek a stay or other
relief from an order removing the restriction of this Order from materials
claimed by the providing party to be Confidential.
8. (a) Receipt into Evidence. Provision is hereby made for receipt into
evidence in this proceeding materials claimed to be confidential in the
following manner:
(i) Prior
to the use of, or substantive reference to, any Confidential or Highly
Confidential Information, the parties intending to use such information shall
make that intention known to the providing party.
(ii) The
requesting party and the providing party shall make a good-faith effort to
reach an agreement so the information can be used in a manner which will not
reveal its trade secret, confidential or proprietary nature.
(iii) If
such efforts fail, the providing party shall separately identify which
portions, if any, of the documents to be offered or referenced shall be placed
in a sealed record.
(iv) Only
one (1) copy of the documents designated by the providing party to be placed in
a sealed record shall be made.
(v) 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 maintained in accordance
with the terms of this Order.
(b) Seal. While in the custody of the Commission,
materials containing
Confidential
Information shall be marked “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER IN MPUC
DOCKET NOS. P-5692, 5340, 5643, 5323, 465, 6422/M-06-211 AND P-999/CI-06-685”
and Highly Confidential Information shall be marked “HIGHLY CONFIDENTIAL – USE
RESTRICTED PER PROTECTIVE ORDER IN MPUC DOCKET NOS. P-5692, 5340, 5643, 5323,
465, 6422/M-06-211 AND P-999/CI-06-685,” and shall not be examined by any
person except under the conditions set forth in this Order.
(c) In
Camera Hearing. Any Confidential or
Highly 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 information
under this Order. Similarly, any
cross-examination on, or substantive reference to, Confidential or Highly
Confidential Information (or that portion of the record containing Confidential
or Highly Confidential Information or references thereto) shall be received in
an in camera hearing, and shall be marked and treated as provided
herein.
(d) Access
to Record. Access to sealed
testimony, records and information shall be limited to the Hearing Officer and
persons who are entitled to review Confidential or Highly Confidential Information
pursuant to section 1(c) above and have signed an Exhibit A or B, unless such
information is released from the restrictions of this Order either through
agreement of the parties or after notice to the parties and hearing, pursuant
to the ruling of a Hearing Officer, the order of the Commission and/or final
order of a court having final jurisdiction.
(e) Appeal/Subsequent
Proceeding. Sealed portions of the
record in this proceeding may be forwarded to any court of competent
jurisdiction for purposes of an appeal, or to the FCC, but under seal as
designated herein for the information and use of the court or the FCC. If a portion of the record is forwarded to a
court or the FCC, 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 or for use at the FCC.
(f) Return. Unless otherwise ordered, Confidential
Information and Highly 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 party within thirty
(30) days after final settlement or conclusion of the proceedings. If the providing party elects to have
Confidential Information or Highly Confidential Information destroyed rather
than returned, counsel of the receiving party shall verify in writing that the
material has in fact been destroyed.
9. Use
in Pleadings. Where references to
Confidential or Highly Confidential Information in the sealed record or with
the providing party is required in pleadings, briefs, arguments or motions (except
as provided in section 7), it shall be by citation of 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 or Highly Confidential Information
shall be placed in a separate section of the pleading or brief and submitted to
the Hearing Officer or the Commission under seal. This sealed section shall be served only on
counsel of record and parties of record who have signed the nondisclosure
agreement set forth in Exhibit A or B.
All of the restrictions afforded by this Order apply to materials
prepared and distributed under this section.
10. Summary
of Record. If deemed necessary by
the Commission or ALJ, the providing party shall prepare a written summary of
the Confidential or Highly Confidential Information referred to in the Order to
be placed on the public record.
11. The provisions of this Order are
specifically intended to apply to all data, documents, studies, and other
material designated as Confidential or Highly Confidential by any party to MPUC
Docket Nos. P-5692, 5340, 5643, 5323, 465, 6422/M-06-211 and P-999/CI-06-685. In addition, experts and consultants of
government agencies are subject to the provisions of this Protective Order that
are applicable to experts and consultants of parties.
12. This
Protective Order shall continue in force and effect after these dockets are
closed.
Dated: June 28, 2006.
_/s/
Barbara L. Neilson_
BARBARA
L. NEILSON
Administrative
Law Judge
EXHIBIT A
I have read the foregoing Protective
Order dated ____________ 2006, in MPUC Docket Nos. P-5692, 5340, 5643, 5323, 465, 6422/M-06-211 and
P-999/CI-06-685P-421/CI-05-1996, and agree
to be bound by the terms and conditions of this Order.
____________________________
Name
____________________________
Employer
____________________________
Job
Title and Job Description
_____________________________
Business Address
____________________________
Party
_____________________________
Signature
_____________________________
Date
EXHIBIT B
I have read the foregoing Protective
Order dated ____________ 2006, in MPUC Docket Nos. P-5692, 5340, 5643, 5323, 465, 6422/M-06-211 AND
P-999/CI-06-685, and agree to be bound by
the terms and conditions of this Order.
____________________________
Name
____________________________
Employer
____________________________
Job
Title and Job Description
_____________________________
Business Address
____________________________
Party
_____________________________
Signature
_____________________________
Date