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12-2500-18075-2 P-430, 5321/M-07-611 |
STATE OF
MINNESOTA
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
INTRODUCTION:
The purpose of this Revised Protective
Order (“Order”) is to facilitate the disclosure of documents and information during
the course of these proceedings and to protect Trade Secret Information and
Nonpublic Information (as defined below) exchanged between MCImetro
Access Transmission Services LLC d/b/a Verizon Access Transmission Services for
Arbitration of an Interconnection Agreement with Embarq Minnesota, Inc. Access to and use of Trade Secret Information
and Nonpublic Data in this proceeding shall be strictly controlled by the terms
of this Order. Trade Secret Information
and Nonpublic Data shall be defined as, and shall constitute, “trade secret
information” under Minn. Stat. § 13.37, subd. 1(b), and “nonpublic data”
under Minn. Stat. § 13.02, subd. 9, and “private data on individuals”
under Minn. Stat. § 13.02, subd. 12.
The government agencies involved in this docket, which include the
Minnesota Public Utilities Commission (the “Commission”), the Office of
Administrative Hearings (“OAH”), and the Minnesota Department of Commerce (the
“Department”) are subject to the Minnesota Government Data Practices Act (“MGDPA”),
the records retention requirements of Minn. Stat.
§ § 138.163-138.226, applicable agency rules, and by paragraph 10 of
this Order.
BACKGROUND:
1. This
matter was referred to the Office of Administrative Hearings by the Minnesota
Public Utilities Commission (Commission) for arbitration in an Order issued on June
4, 2007, 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.
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.
4. Verizon
and Embarq have requested that a Protective Order be issued in the form issued
in Docket 06-498. The Department has
raised concerns about possible vagueness in that Protective Order relating to
handling of not public data under state laws and agency rules. It therefore prefers the form of the Protect
Agreement and Order issued in Docket 07-495.
For the reasons stated by the Department, the latter form is being
issued.
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. P-430, 5321/M-07-611.” 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 and
as needed for all subsequent appeals of the final order in 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. P-430, 5321/M-07-611”
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 non-confidential 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. P-430, 5321/M-07-611.” 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. If deemed necessary by the
Commission or the Administrative Law Judge, the Providing Party shall prepare a
written summary of the Trade Secret Information or Nonpublic Data referred to
in this Order to be placed on the public record.
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.
However, any outside expert retained by a
state agency may not receive or review Trade Secret or Nonpublic Data subject
to this Order until the expert has signed Exhibit A and outside experts of the
state agencies shall comply with the terms of this Order.
Dated: August 7, 2007
_s/Steve M. Mihalchick__________________
STEVE M. MIHALCHICK
Administrative Law Judge
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12-2500-18075-2 P-430, 5321/M-07-611 |
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 Revised Protective Order dated August 7, 2007, in Minnesota Public
Utilities Commission Docket No. P-430, 5321/M-07-611, OAH Docket 12-2500-18075-2, 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. P-430, 5321/M-07-611” 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:
______________, 2007
________________________________
Signature
________________________________
Type
or Print Name
________________________________
Address
________________________________
Name
of Employer
________________________________
Name
of Party