ORDER NO 96-045.
ENTERED FEB 21 1996
THIS IS AN ELECTRONIC COPY
BEFORE THE PUBLIC UTILITY COMMISSION
OF OREGON
UT 125
| In the Matter of the Application of U S WEST Communications, Inc. For an Increase in Revenues | )
) PROTECTIVE ORDER ) |
On February 1, 1996, U S WEST Communications, Inc. (USWC)
filed a Petition for the Adoption of a Protective Order and
Supporting Affidavit. USWC moves for the issue of a standard
protective order to restrict disclosure of certain information it
claims is confidential. The affidavit that USWC filed with its
petition sets forth facts intending to show that good cause
exists to issue a protective order.
USWC asserts that it has received and expects to receive data
requests for highly sensitive, proprietary, and confidential
research, development of commercial information such as marketing
and business plans and cost data, and other materials that may
include trade secret information, the unprotected disclosure of
which would result in a clearly defined and serious injury to
USWC. USWC's affidavit asserts: that the unprotected disclosure
of confidential information could be used by USWC's competitors
to their commercial advantage and to the commercial disadvantage
of USWC or its affiliated companies; that the information USWC
anticipates being asked for is proprietary and cannot be easily
duplicated or acquired by others; and that USWC and its
affiliates have taken stringent measures to safeguard the secrecy
of this information and unprotected disclosure of the information
would result in substantial monetary loss to USWC and to its
customers.
USWC has made a prima facie showing of good cause to issue a protective order in this proceeding. This protective order and the information protected by it is subject to all the provisions set forth in Appendix A. Parties agreeing to be bound by the terms of the protective order shall sign the signatory page of Appendix B.
NOTICE
Any party in this proceeding may appeal to the Commission for
relief from any term of this Protective Order by filing a
complaint with the Commission as provided in OAR 860-13-015.
Parties benefiting from this Protective Order may respond as
provided by Commission Rules of Practice and Procedure. For good
cause shown, the Commission may establish expedited procedures
for ruling on any such appeal.
ORDER
IT IS ORDERED that the Standard Protective Order, attached as
Appendix A, shall govern disclosure of confidential information
in this case.
Made, entered, and effective February 21, 1996, pursuant to OAR
860-12-035(1)(k).
| ___________________________
Ruth Crowley Administrative Law Judge |
This order may be appealed to the Commission pursuant to OAR
86014091. The appeal should be in the form of a
motion. See OAR 86013-031.
APPENDIX A
STANDARD PROTECTIVE ORDER
Scope of this Order-
1. This order governs the acquisition and use of
"confidential information" in this proceeding.
Definitions-
2. "Confidential Information" is information that
falls within the scope of ORCP 36(C)(7) ("a trade secret or
other confidential research, development, or commercial
information").
3. A "qualified person" is an individual who is:
a. The author(s), addressee(s), or originator(s) of the
confidential information;
b. The Commissioner(s) or the Commission staff;
c. Counsel of record for a party;
d. A person employed directly by counsel of record;
e. An unaffiliated expert retained by a party;
f. A person approved by the party desiring confidentiality
(pursuant to paragraph 9); or
g. A party designated a qualified person by order of the
Commission (pursuant to paragraph 9).
Designation of Confidential Information-
4. A party providing confidential information shall inform
other parties that the material has been designated confidential
by placing the following legend on the information:
CONFIDENTIAL
SUBJECT TO PROTECTIVE ORDER
To the extent practicable, the party shall designate only the
portions of the document that fall within ORCP 36(C)(7).
5. A party may designate as confidential any information
previously provided by giving written notice to the other
parties. Parties in possession of newly designated confidential
information shall, when feasible, ensure that all copies of the
information bear the above legend to the extent requested by the
party desiring confidentiality.
Disclosure of Confidential Information-
6. Confidential information shall not be disclosed to any
person other than a "qualified person," as defined in
paragraph 3. When feasible, confidential information shall be
delivered to counsel. In the alternative, confidential
information may be made available for inspection and review by
qualified persons in a place and time agreeable to the parties or
as directed by the presiding officer.
7. Before reviewing confidential information, a person
qualified under paragraphs 3(e) through 3(g) must:
a. Read a copy of this Protective Order;
b. Execute a statement acknowledging that the order has been
read and agreeing, in return, for access to the information, to
be bound by the terms of the order; and
c. Date the statement.
Counsel shall, upon request, deliver a copy of the signed
statement to the party desiring confidentiality.
8. Prior to disclosing confidential information to an
unaffiliated expert qualified under paragraph 3(e), the party
seeking to disclose the information must notify the party
desiring confidentiality, in writing, at least three business
days prior to the intended disclosure. The notice shall state:
a. The exact nature of the information to be disclosed;
b. The identity of the unaffiliated expert; and
c. Any past, present, or anticipated future affiliation
between the expert and any party to the proceeding.
9. When a party desires to disclose confidential information
to an unqualified person, the party must, in writing, request
permission from the party desiring confidentiality. The request
must state:
a. The exact nature of the information to be disclosed;
b. The identity of the person(s) to whom it would be
disclosed;
c. The nature of any past, present, or anticipated future
affiliation between the person(s) and any party to this
proceeding; and
d. The specific reasons why disclosure is necessary.
If the party desiring confidentiality agrees to disclosure,
the person to receive the information will become qualified under
paragraph 3(f) for the information identified in the request. If
a party requests permission to disclose confidential information
to an unqualified person, and the party desiring confidentiality
fails to grant permission in writing within three business days,
the party requesting disclosure may move to qualify the person
under paragraph 3(g). The motion must contain the information set
forth in the original request. The information shall not be
disclosed pending the presiding officer's ruling on the motion.
Preservation of Confidentiality-
10. All persons who are given access to any confidential
information by reason of this order shall not use or disclose the
confidential information for purposes of business or competition,
or for any purpose other than the purposes of preparation for and
conduct of this proceeding, and shall take all reasonable
precautions to keep the confidential information secure.
With the exception of Commission staff, parties may not copy,
microfilm, microfiche, or otherwise reproduce confidential
information without the written consent of the providing party.
Information Given to the Commission-
11. Confidential Information that is: a) filed with the
Commission or its staff, b) made an exhibit, c) incorporated into
a transcript, or d) incorporated into a pleading, brief, or other
document, shall be separately bound and placed in a sealed
envelope or other appropriate container. To the extent
practicable, only the portions of a document that fall within
ORCP 36(C)(7) shall be placed in the envelope container. The
envelope/container shall bear the legend:
THIS ENVELOPE IS SEALED PURSUANT TO ORDER NO. __________ AND
CONTAINS CONFIDENTIAL INFORMATION. THE INFORMATION MAY BE SHOWN
ONLY TO QUALIFIED PERSONS AS DEFINED IN THE ORDER.
12. The Commission's Administrative Hearings Division shall
store the confidential information in a locked cabinet dedicated
to the storage of confidential information.
Duration of Protection-
13. The confidentiality of confidential information shall be
preserved until the Commission, by order, terminates the
protection conferred by this order.
Destruction After Proceeding-
14. Counsel of record may retain memoranda or pleadings
containing confidential information to the extent reasonably
necessary to maintain a file of this proceeding. The information
retained may not be disclosed to any person. Any other person
retaining confidential information must destroy or return it to
the party desiring confidentiality within 90 days after final
resolution of this proceeding unless the party desiring
confidentiality consents, in writing, to retention of the
confidential information. This paragraph does not apply to the
Commission or its staff.
Appeal to the Presiding Officer-
15. If a party disagrees with the designation of information
as confidential, the party shall contact the designating party
and attempt to resolve the dispute on an informal basis. If the
parties are unable to resolve the dispute, the party desiring to
use the information may move for exclusion of the information
from the protection conferred by this order. The motion shall:
a. Specifically identify the contested information, and
b. Assert that the information does not fall within ORCP
36(C)(7).
The party resisting disclosure has the burden of showing that
the challenged information falls within ORCP 36(C)(7). If the
party resisting disclosure does not respond to the motion within
10 days, the challenged information shall be removed from the
protection of this order.
The information shall not be disclosed pending a ruling by the
Commission or the presiding officer on the motion.
Additional Protection-
16. A party desiring additional protection may move for any of
the remedies set forth in ORCP 36(C). The motion shall state:
a. The parties and persons involved;
b. The exact nature of the information involved;
c. The exact nature of the relief requested; and
d. The specific reasons the requested relief is necessary.
The information need not be released and, if released, shall
not be disclosed pending the Commission's ruling on the motion.
AppA:protecord
APPENDIX A
STANDARD PROTECTIVE ORDER
Scope of this Order-
1. This order governs the acquisition and use of
"confidential information" in this proceeding.
Definitions-
2. "Confidential Information" is information that
falls within the scope of ORCP 36(C)(7) ("a trade secret or
other confidential research, development, or commercial
information").
3. A "qualified person" is an individual who is:
a. The author(s), addressee(s), or originator(s) of the
confidential information;
b. The Commissioner(s) or the Commission staff;
c. Counsel of record for a party;
d. A person employed directly by counsel of record;
e. An unaffiliated expert retained by a party;
f. A person approved by the party desiring confidentiality
(pursuant to paragraph 9); or
g. A party designated a qualified person by order of the
Commission (pursuant to paragraph 9).
Designation of Confidential Information-
4. A party providing confidential information shall inform
other parties that the material has been designated confidential
by placing the following legend on the information:
CONFIDENTIAL
SUBJECT TO PROTECTIVE ORDER
To the extent practicable, the party shall designate only the
portions of the document that fall within ORCP 36(C)(7).
5. A party may designate as confidential any information
previously provided by giving written notice to the other
parties. Parties in possession of newly designated confidential
information shall, when feasible, ensure that all copies of the
information bear the above legend to the extent requested by the
party desiring confidentiality.
Disclosure of Confidential Information-
6. Confidential information shall not be disclosed to any
person other than a "qualified person," as defined in
paragraph 3. When feasible, confidential information shall be
delivered to counsel. In the alternative, confidential
information may be made available for inspection and review by
qualified persons in a place and time agreeable to the parties or
as directed by the presiding officer.
7. Before reviewing confidential information, a person
qualified under paragraphs 3(e) through 3(g) must:
a. Read a copy of this Protective Order;
b. Execute a statement acknowledging that the order has been
read and agreeing, in return, for access to the information, to
be bound by the terms of the order; and
c. Date the statement.
Counsel shall, upon request, deliver a copy of the signed
statement to the party desiring confidentiality.
8. Prior to disclosing confidential information to an
unaffiliated expert qualified under paragraph 3(e), the party
seeking to disclose the information must notify the party
desiring confidentiality, in writing, at least three business
days prior to the intended disclosure. The notice shall state:
a. The exact nature of the information to be disclosed;
b. The identity of the unaffiliated expert; and
c. Any past, present, or anticipated future affiliation
between the expert and any party to the proceeding.
9. When a party desires to disclose confidential information
to an unqualified person, the party must, in writing, request
permission from the party desiring confidentiality. The request
must state:
a. The exact nature of the information to be disclosed;
b. The identity of the person(s) to whom it would be
disclosed;
c. The nature of any past, present, or anticipated future
affiliation between the person(s) and any party to this
proceeding; and
d. The specific reasons why disclosure is necessary.
If the party desiring confidentiality agrees to disclosure,
the person to receive the information will become qualified under
paragraph 3(f) for the information identified in the request. If
a party requests permission to disclose confidential information
to an unqualified person, and the party desiring confidentiality
fails to grant permission in writing within three business days,
the party requesting disclosure may move to qualify the person
under paragraph 3(g). The motion must contain the information set
forth in the original request. The information shall not be
disclosed pending the presiding officer's ruling on the motion.
Preservation of Confidentiality-
10. All persons who are given access to any confidential
information by reason of this order shall not use or disclose the
confidential information for purposes of business or competition,
or for any purpose other than the purposes of preparation for and
conduct of this proceeding, and shall take all reasonable
precautions to keep the confidential information secure.
With the exception of Commission staff, parties may not copy,
microfilm, microfiche, or otherwise reproduce confidential
information without the written consent of the providing party.
Information Given to the Commission-
11. Confidential Information that is: a) filed with the
Commission or its staff, b) made an exhibit, c) incorporated into
a transcript, or d) incorporated into a pleading, brief, or other
document, shall be separately bound and placed in a sealed
envelope or other appropriate container. To the extent
practicable, only the portions of a document that fall within
ORCP 36(C)(7) shall be placed in the envelope container. The
envelope/container shall bear the legend:
THIS ENVELOPE IS SEALED PURSUANT TO ORDER NO. __________ AND
CONTAINS CONFIDENTIAL INFORMATION. THE INFORMATION MAY BE SHOWN
ONLY TO QUALIFIED PERSONS AS DEFINED IN THE ORDER.
12. The Commission's Administrative Hearings Division shall
store the confidential information in a locked cabinet dedicated
to the storage of confidential information.
Duration of Protection-
13. The confidentiality of confidential information shall be
preserved until the Commission, by order, terminates the
protection conferred by this order.
Destruction After Proceeding-
14. Counsel of record may retain memoranda or pleadings
containing confidential information to the extent reasonably
necessary to maintain a file of this proceeding. The information
retained may not be disclosed to any person. Any other person
retaining confidential information must destroy or return it to
the party desiring confidentiality within 90 days after final
resolution of this proceeding unless the party desiring
confidentiality consents, in writing, to retention of the
confidential information. This paragraph does not apply to the
Commission or its staff.
Appeal to the Presiding Officer-
15. If a party disagrees with the designation of information
as confidential, the party shall contact the designating party
and attempt to resolve the dispute on an informal basis. If the
parties are unable to resolve the dispute, the party desiring to
use the information may move for exclusion of the information
from the protection conferred by this order. The motion shall:
a. Specifically identify the contested information, and
b. Assert that the information does not fall within ORCP
36(C)(7).
The party resisting disclosure has the burden of showing that
the challenged information falls within ORCP 36(C)(7). If the
party resisting disclosure does not respond to the motion within
10 days, the challenged information shall be removed from the
protection of this order.
The information shall not be disclosed pending a ruling by the
Commission or the presiding officer on the motion.
Additional Protection-
16. A party desiring additional protection may move for any of
the remedies set forth in ORCP 36(C). The motion shall state:
a. The parties and persons involved;
b. The exact nature of the information involved;
c. The exact nature of the relief requested; and
d. The specific reasons the requested relief is necessary.
The information need not be released and, if released, shall
not be disclosed pending the Commission's ruling on the motion.
AppA:protecord
SIGNATORY PAGE
UT 125
Consent to be Bound-
This order governs the use of "confidential
information" in this proceeding.
I have read this Order, including Appendix A, and agree to be
bound by its terms.
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