OAH 3-2500-21343-2
PUC E-017/GR-10-239
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
The purpose of this Protective
Order (“Order”) is to facilitate the disclosure during the course of these
proceedings of documents and information claimed by a producing party to
contain trade secret and privileged information (“Trade Secret Information” or “Nonpublic
Data”). Access to, review of, and use of
Trade Secret Information or Nonpublic Data by parties shall be strictly
controlled by the terms of this Order.
The parties, other than government
agencies, are referred to below as parties, persons or entities.
1. The
government agencies with access to Trade Secret Information and Nonpublic Data,
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, Office of Energy Security (“OES”); the Office
of the Attorney General-Residential and Small Business Utilities Division
(“OAG-RUD”); the Minnesota Department of Administration (“Administration”);
Office of Enterprise Technology (“OET”) and the Minnesota State Historical Society. These agencies 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, and
agency-specific rules and procedures, such as the Commission’s September 1,
1999, Revised Procedures for Handling
Trade and Privileged Data (Commission’s Procedures).
2. This
matter was referred to the Office of Administrative Hearings by the Commission
for a contested case hearing in its Notice and Order for Hearing issued on May
27, 2010, in the above-entitled docket.
3. During
the proceedings in this matter, Parties may file, request and use trade secret
information or nonpublic data, as defined by Minnesota Statutes § 13.01 et. seq.
4. Minnesota
Statutes § 14.60, subdivision 2, authorizes the Administrative Law Judge in a
contested case to conduct a closed hearing to discuss trade secret or nonpublic
data, issue necessary Protective Orders, and seal all or part of the hearing
record.
IT IS HEREBY
ORDERED:
1. (a) Trade
Secret Information and Nonpublic Data.
All Nonpublic Data, including Trade Secret Information, 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.
Material that is covered by this Order shall not be used or disclosed
for any other purpose. In accordance
with the 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 “NONPUBLIC DOCUMENT-CONTAINS TRADE SECRET INFORMATION-NONPUBLIC
DATA.” 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 Person Entitled to Review. All
Trade Secret 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 the 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 in
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 MGDPA or Commission
Procedures, the requirements of the MGDPA or Commission Procedures shall
control. Any provision of the Protective
Order not consistent with 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
the Protective Order except where contrary to the requirements of the MGDPA or
Commission Procedures.
(d) Challenge to Trade Secret Designation. The Administrative Law Judge, upon a request
by or to any party or government agency, and ten (10) days prior to 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 and Nonpublic Data.
(e) Verbal Disclosure. Trade Secret Information and/or Nonpublic
Data may be verbally disclosed by government agencies during depositions or
hearing in this matter upon prior notice to and agreement of the disclosing
party or authorization by the Administrative Law Judge.
(f) Transcripts. 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 the 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 and 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 and 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 and/or
Nonpublic Data in Hearings. The
Receiving Party shall not use Trade Secret Information 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 Information 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 and/or Nonpublic Data referred to in this Order to be placed
on the public record.
8. Return. Unless otherwise ordered, all Trade Secret
Information 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. In the alternative, counsel may certify by
letter to the disclosing party, within the same timeframe, that Trade Secret
Information or Nonpublic Data have been destroyed.
9. Preservation of Non-Public Information. All persons who may be entitled to receive,
or who are afforded access to any Trade Secret Information and/or Nonpublic Data
by reason of this Protective Order shall neither use nor disclose the Trade
Secret Information and/or Nonpublic Data for purposes of business or competition,
or any other purpose other than the purposes of preparation for and conduct of
this proceeding, 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. Highly Confidential Information. During the proceedings in this matter,
parties may request Trade Secret Information that is also Highly Confidential
Information. Highly Confidential
Information is trade secret, non-public information that would benefit the
receiving party or any other party to this proceeding in its business
operations. If such Highly Confidential
Information is requested, any party may request heightened protective measures
as necessary regarding the disclosure of the Highly Confidential Information,
including, but not limited to identifying particular party representatives who
are eligible to receive the Highly Confidential Information and limiting the
use of the Highly Confidential Information.
11. 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.
12. Inadvertent Disclosure. No party shall have waived its right to
designate any documents, data, information, studies, or other materials as
Trade Secret Information and/or Nonpublic Data 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 and/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.
13. Disclosure of Trade Secret/Nonpublic
Data to Unauthorized Person. If
material(s) designated as Trade Secret Information and/or Nonpublic Data is
disclosed by a party to any person other than those entitled to disclosure in
the manner authorized by this Protective Order, the party responsible for the
disclosure shall immediately upon learning of such disclosure inform the
designating party in writing and by telephone call of all pertinent facts
relating to such disclosure and shall make every effort to prevent further
disclosure by the unauthorized person(s).
The disclosing party shall use its best efforts to retrieve the
documents and/or tangible things from the unauthorized recipients. The parties thereafter shall informally
attempt to resolve the matter promptly.
If the parties are unable to resolve the issue, a party may file a
motion with the Administrative Law Judge for relief with notice to the parties
of record. This Protective Order shall
not abrogate or diminish any contractual, statutory, or other legal obligation
or right of any party with respect to the improper release of Trade Secret
Information and/or Nonpublic Data.
Dated: June 30, 2010 s/Kathleen D. Sheehy
___________________________
KATHLEEN
D. SHEEHY Administrative
Law Judge
|
OAH
3-2500-21343-2
PUC E-017/GR-10-239
|
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 June 23, 2010, in Minnesota Public Utilities Commission Docket No.
E-017/GR-10-239, OAH Docket 3-2500-21343-2,
and understand the terms thereof and agree to be bound by all such terms.
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 the Protective
Order.
Date: ______________, 2010
____________________________________
Signature
____________________________________
Type or Print Name
____________________________________
Address
____________________________________
Name of Employer
____________________________________
Name of Party
