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3-2500-20148-2
E-002/GR-08-1065
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STATE
OF MINNESOTA
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE PUBLIC UTILITIES COMMISSION
INTRODUCTION:
1. 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 trade secret information and
nonpublic information (Trade Secret Information or Nonpublic Data).
Access to and use of Trade
Secret information and nonpublic data in this proceeding by parties other than
government agencies shall be strictly controlled by the terms of this Order. The parties other
than government agencies are herein referred to as parties, persons or
entities.
The government agencies with
access to Trade Secret Information and Nonpublic Data, which include the
Minnesota Public Utilities Commission (“Commission”), the Office of
Administrative Hearings (“OAH”), the Office of the Attorney General (OAG) the
Minnesota Department of Commerce, including the Minnesota Office of Energy
Security (“Department” or “OES”), the
Office of the Attorney General-Residential and Small Business Utilities
Division (“OAG-RUD”), the Minnesota Department of Administration,
(Administration) the Minnesota Department of Administration, Office of
Enterprise Technology (“OET”) and the Minnesota State Historical Society, are
subject to various laws and rules, including the Minnesota Government Data
Practices Act (“MGDPA”), the records retention requirements of Minn. Stat. §§
138.163-138.226, as well as agency-specific rules and procedures, including the
Commission’s
September 1, 1999, Revised Procedures for
Handling Trade Secret and Privileged Data (Commission’s Procedures).
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 Order, and shall be treated by all
persons accorded access thereto pursuant to this Protective 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 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.” 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 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 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 Minnesota
or in other jurisdictions. Unless
otherwise provided in this Protective Order, all Trade Secret Information will
be safeguarded and handled in accordance with the Commission’s Procedures.
(c) Nondisclosure Protective 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 Order to such person; and prior to disclosure such
person shall agree in writing to comply with and be bound by this Protective
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 48-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 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 48 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 48 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. Government Agencies. The government agencies are not subject to the terms of this
Protective Order except, while this matter is pending before the OAH and as to
matters within the jurisdiction of the OAH, government agencies are subject to
this paragraph 2.
(a) Definition of
Trade Secret Information and Nonpublic Data. “Trade Secret Information
and Nonpublic Data” shall be limited to “trade secret information” as defined
at Minn. Stat. § 13.37, subd. 1(b), “nonpublic data” as defined at Minn. Stat.
§ 13.02, subd. 9, and “private data on individuals” as defined at Minn. Stat.
§13.02, subd. 12. This definition
applies to both government agencies and parties.
(b) Conflicts. To the extent this
Protective Order conflicts with or omits a matter otherwise required by either
the MGDPA or Commission Procedures, the requirements of the MGDPA or Commission
Procedures shall control. Any provision
of this Protective Order not consistent with this paragraph 2 shall be of no
effect with respect to the government agencies.
(c) Experts. A
government agency may not provide Trade Secret Information and Nonpublic Data to
outside experts providing assistance on this matter until the outside experts
have signed Exhibit "A." Said
experts shall comply with the terms of this Protective Order except where contrary
to the requirements of the MGDPA or Commission Procedures.
(d) Challenge to Trade Secret Designation. Notwithstanding, and in lieu of, any
requirements of the MGDPA to the contrary, the Administrative Law Judge, upon a
request by or to any party or government agency, and ten (10) days prior notice
or such period as is determined by the Administrative Law Judge, may hold a
hearing in camera and remove a designation of Trade Secret Information
or Nonpublic Data.
(e) Verbal Disclosure. Notwithstanding, and in lieu of, any
requirements of the MGDPA to the contrary, Trade Secret and/or Nonpublic Data may
be verbally disclosed by government agencies during depositions or hearings in
this matter upon prior notice to and
agreement of the disclosing party or authorization by the Administrative Law
Judge.
(f) Transcripts. Notwithstanding, and in lieu of, any
requirements of the MGDPA to the contrary, each disclosing party or government
agency may identify portions of depositions or hearing transcripts that
disclose Trade Secret Information and/or Nonpublic Data for up to three
business days after the transcript is made available to them, and the court
reporter shall mark those portions of transcript “TRADE SECRET INFORMATION—NONPUBLIC DATA,” consistent with the
Commission’s Procedures.
3. Challenge to Non-Publicity, Trade
Secret Designation or Other Special Requests. This Protective Order shall not be construed
as a ruling on the discoverability, confidentiality or trade secret designation
of any information or document. While
this matter is pending before the OAH, 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 Order or to have
them handled in a manner differently than described in this Protective 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 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,” unless the ALJ determines that the proceeding
should not be classified as involving Trade Secret Information or Nonpublic
Data.
4. 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 Order apply to materials
prepared and distributed under this paragraph.
5. 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.”
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.
6. Use of Trade Secret Information or
Nonpublic Data in Hearings. 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.
7. Public Summaries. To the extent required by the Commission’s
Procedures, 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.
8. 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
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.
9. 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 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 Order.
10. 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 admissibility 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 or documents or cross-examination on
the grounds of relevancy or materiality.
11. 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 Order.
Dated: February 12, 2009
s/Kathleen
D. Sheehy
____________________
KATHLEEN D.
SHEEHY
Administrative
Law Judge
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3-2500-20148-2
E-002/GR-08-1065
|
STATE
OF MINNESOTA
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
I, the
undersigned, hereby acknowledge that I have read the attached Protective Order
dated February 12, 2009, in Minnesota Public Utilities Commission Docket No.
E-002/GR-08-1065, OAH Docket 3-2500-20148-2, 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” under the terms of said Protective 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 Minnesota and the Minnesota
Public Utilities Commission for the purpose of enforcing said Protective Order.
Date: ______________, 2009
____________________________________
Signature
____________________________________
Type or Print
Name
____________________________________
Address
____________________________________
Name of
Employer
____________________________________
Name of Party
Minnesota Office of Administrative Hearings
600 North
Robert Street
Saint Paul, Minnesota
55101
Mailing
Address: Voice: (651) 361-7900
P.O. Box 64620 TTY: (651) 361-7878
St. Paul, Minnesota
55164-0620 Fax: (651) 361-7936
February 12, 2009
To All
Parties on the Attached Service List as of February 12, 2009
Re: In
the Matter of the Application of Northern States Power
Company
d/b/a Xcel Energy for Authority to Increase Rates for
Electric
Service in Minnesota
OAH Docket No.
3-2500-20148-2
Dear Parties:
Enclosed herewith and served upon you as
indicated on the attached service list is the Administrative Law Judge’s
Protective Order in the above entitled matter.
Sincerely,
s/Kathleen
D. Sheehy
KATHLEEN
D. SHEEHY
Administrative
Law Judge
Telephone:
(651) 361-7848
KDS:nh
Encl.
cc
Docket
Coordinator
OAH No.
3-2500-20148-2
MPUC E-002/GR-08-1065
In
the Matter of the Application of Northern States Power Company d/b/a Xcel
Energy for Authority to Increase Rates for Electric Service in Minnesota
Administrative
Law Judge’s Service List as of February 12, 2009
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Kathleen D. Sheehy
Administrative Law Judge
Office of Administrative Hearings
P.O.
Box 64620
St.
Paul, MN 55164-0620
651-361-7848
FAX:
651-361-7936
(eFile and one courtesy copy)
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Burl W. Haar
Minnesota
Public Utilities Commission
121
East Seventh Place, Suite 350
St.
Paul, MN 55101-2147
FAX:
651-297-7073
(eFile or 15 copies)
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Sharon Ferguson
Docket Coordinator
Minnesota Department of Commerce
85
Seventh Place East, Suite 500
St.
Paul, MN 55101-2198
(eFile or four copies)
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Linda S. Jensen
Valerie Means
Assistant Attorneys General
445
Minnesota Street
Suite
1400
St.
Paul, MN 55101-2131
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Christopher Anderson
Minnesota
Power
30
West Superior Street
Duluth,
MN 55802-2093
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Michael J. Bradley
Richard J. Johnson
Moss & Barnett
4800 Wells Fargo
Center
90
South Seventh Street
Minneapolis,
MN 55402-4129
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Robert S. Carney, Jr.
4232
Colfax Avenue South
Minneapolis,
MN 55409
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Christopher B. Clark
James B. Johnson
Assistant General Counsel
Xcel Energy
414 Nicollet Mall—5th Floor
Minneapolis,
MN 55401-1993
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Edward Garvey
32
Lawton Street
St.
Paul, MN 55102
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Bruce Gerhardson
Ron Spangler, Jr.
Otter Tail Corporation
P.O.
Box 496
Fergus
Falls, MN 56538-0496
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Ronald M. Giteck
William T. Stamets
OAG/RUD
445
Minnesota Street, Suite 900
St.
Paul, MN 55101
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Elizabeth Goodpaster
MN Center for Environmental Advocacy
26
East Exchange Street, Suite 206
St.
Paul, MN 55101-1667
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Christopher Greenman
Thomas L. Osteraas
Excelsior Energy
11100
Wayzata Boulevard
Minnetonka,
MN 55305
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Lloyd W. Grooms
David M. Aafedt
Winthrop & Weinstine
Suite
3500
225
South Sixth Street
Minneapolis,
MN 55402-4629
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William Hagstrom
Catapult Capital Management LLC
650 Fifth Avenue—32nd Floor
New
York, NY 10019
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Tony Hainault
Hennepin County DES
417
N. 5th Street, Suite 200
Minneapolis,
MN 55401
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Gordon Hauk
Ford Motor Company
16800
Executive Plaza Drive
Dearborn,
MI 48126
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Annette Henkel
Minnesota
Utility Investors
400
N. Robert Street, Suite 200
St.
Paul, MN 55101-2002
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Arshia Javaherian
Regulatory Attorney
Interstate Power & Light Company
200 First Street SE
PO
Box 351
Cedar
Rapids, IA 52406-0351
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Alan R. Jenkins
Jenkins at Law, LLC
2265
Roswell Road, Suite 100
Marietta,
GA 30062
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Mark J. Kaufman
IBEW Local Union 949
12908
Nicollet Avenue South
Burnsville,
MN 55337
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Thomas G. Koehler
Business Manager/Financial Secretary
IBEW Local Union 160
2522
Marshall St. NE
Minneapolis,
MN 55418
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Charles Kyte
Minnesota
Ass’n of School Administrators
1884
Como Avenue
St.
Paul, MN 55108
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Robert S. Lee
Andrew Moratzka
Mackall, Crounse and Moore
1400 AT&T Tower
901
Marquette Avenue
Minneapolis,
MN 55402
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Kim Lillyblad
David W. Niles
Avant Energy Services
200
South Sixth Street, Suite 300
Minneapolis,
MN 55402
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Pam Marshall
Executive Director
Energy CENTS Coalition
823
East Seventh Street
St.
Paul, MN 55106
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Brian Meloy
Byron E. Starns
Leonard, Street & Deinard
150
South Fifth Street, Suite 2300
Minneapolis,
MN 55402
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Joseph V. Plumbo
Business Manager/Financial Secretary
IBEW Local Union 23
932
Payne Avenue
St.
Paul, MN 55130
FAX 651-776-8907
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Richard J. Savelkoul
Jacob C. Hendricks
Felhaber, Larson, Fenlon & Vogt
444
Cedar Street, Suite 2100
St.
Paul, MN 55101-2136
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Steve Schneider
Board of Water Commissioners
1900
Rice Street
St.
Paul, MN 55113
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James M. Strommen
Kennedy & Graven
470 U.S. Bank Plaza
200
South Sixth Street
Minneapolis,
MN 55402
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SaGonna Thompson
Xcel Energy
414 Nicollet Mall, 7th Floor
Minneapolis,
MN 55401-1993
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Lisa Veith
City of St. Paul
400 City Hall and Courthouse
15
West Kellogg Blvd.
St.
Paul, MN 55102
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Dave Wagner
St.
Paul Regional Water Services
1900
Rice Street North
St.
Paul, MN 55113
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Keith Weigel
AARP
Suite
1200
30
E. Seventh Street
St.
Paul, MN 55101
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Rebecca S. Winegarden
10555
Union Terrace Lane N
Maple
Grove, MN 55369-2622
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E-mail
List:
kathleen.sheehy@state.mn.us
Linda.s.jensen@state.mn.us
valerie.means@state.mn.us
sharon.ferguson@state.mn.us
dale.lusti@state.mn.us
ron.giteck@state.mn.us
bill.stamets@state.mn.us
john.lindell@state.mn.us
bradleym@moss-barnett.com
johnsonr@moss-barnett.com
christopher.b.clark@xcelenergy.com
james.p.johnson@xcelenergy.com
sagonna.thompson@xcelenergy.com
pam@energycents.org
rsavelkoul@felhaber.com
jhendricks@felhaber.com
kmaini@wi.rr.com
Larry@llsresources.com
jstrommen@kennedy-graven.com
rsl@mcmlaw.com
apm@mcmlaw.com
jcp@jpollockinc.com
Lwworthy@marathonoil.com
Lgrooms@winthrop.com
bob.bridges@versopaper.com
mkaufman@ibewlocal949.org
tgk@ibew160.org
aj@jenkinsatlaw.com
rbaudino@jkenn.com
susan.mackenzie@state.mn.us
janet.gonzalez@state.mn.us
jshaddix@janetshaddix.com
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
ADMINISTRATIVE LAW SECTION
600 NORTH ROBERT
STREET
ST. PAUL, MN
55101
CERTIFICATE
OF SERVICE
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Case Title: In the Matter of the Application of
Northern States Power Company d/b/a Xcel Energy for Authority to Increase
Rates for Electric Service in Minnesota
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OAH
Docket No.: 3-2500-20148-2
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Nancy J. Hansen
certifies that on the 12th day of February, 2009, she served a true and correct
copy of the attached Protective Order as indicated on the attached service list
or by placing it in the United
States mail with postage prepaid, addressed
to the following individuals:
See the attached Administrative Law
Judge’s Service List as of February 12, 2009