ORDER NO. 99-029

ENTERED January 22, 1999

This is an electronic copy. Appendices and footnotes may not be included.

OF OREGON

UM 918

 DISPOSITION: MOTION FOR PROTECTIVE ORDER GRANTED

On January 19, 1999, Scottish Power plc and PacifiCorp (Applicants) filed a joint Motion for a Protective Order pursuant to OAR 860-011-0000(3) and Rule 36(C)(7) of the Oregon Rules of Civil Procedure (ORCP). In support of their motion, Applicants state that they have received data requests seeking sensitive business and financial analysis connected to the merger. Applicants anticipate that a number of parties will intervene in this docket and engage in discovery that seeks a significant amount of sensitive and proprietary information, such as Applicants’ financial information and projections, strategic plans, and information relating to employees. Applicants assert that they will be exposed to competitive injury if they are forced to make unrestricted disclosure of their confidential business information, especially in light of the growing competitiveness of the electric utility industry both here and abroad.

Good cause exists to issue a Standard Protective Order, attached as Appendix A, in this proceeding. OAR 860-012-0035(1)(k). Under the terms of that order, a party may designate as confidential any information it believes falls within the scope of ORCP 36(C)(7). Once designated as confidential, the information may be disclosed only to "qualified persons" associated with parties that have agreed to be bound by the terms of the Protective Order by signing the signatory page set forth in Appendix B.

Paragraph 3 of the protective order establishes two categories of "qualified persons." The first category, set forth in subsections (a) through (d), includes the authors of the confidential material, the Commission or its Staff, and counsel of record for a party or persons directly employed by counsel. This group of persons is entitled to review confidential information without the need to give notice to the party desiring confidentiality or execute an additional statement agreeing to be bound by the terms of the order. As noted above, however, a party must sign the signatory page before anyone associated with the party, including its counsel, may review the confidential material.

Subsections (e) through (g) of Paragraph 3 set forth the second category of qualified persons. These include unaffiliated party experts, persons approved by the party desiring confidentiality, and persons designated as qualified by Commission order. As a prerequisite to gaining access to confidential information, this second category of qualified persons must execute a consent to be bound. Prior to disclosing confidential information to an unaffiliated expert, the party seeking to disclose the information must also notify the party desiring confidentiality. See Paragraphs 7 and 8.

Paragraph 9 provides the procedures for when a party desires to disclose information to a person who is not qualified under Paragraph 3. In such circumstances, the party must request permission from the party desiring confidentiality and provide certain information, including the identity of the unqualified person and the specific reasons why disclosure is necessary. If the party desiring confidentiality fails or refuses to grant the request, the party seeking disclosure may file a motion to qualify the person by Commission order.

All persons who are given access to confidential information have the duty to monitor their own conduct to ensure their compliance with the Protective Order. Such persons shall not use or disclose the information 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. 

ORDER

IT IS ORDERED:

(1) That the Standard Protective Order, attached as Appendix A, shall govern the disclosure of confidential information in this case. For each item produced under the Protective Order, the disclosing party shall differentiate confidential matter from non-confidential matter. In addition, the Protective Order shall include the following provisions:

Any physical media containing computer software that are delivered to a party pursuant to a discovery request and that are designated confidential shall be returned to the designating party at the conclusion of the litigation. The party receiving the media shall sign a certificate affirming that the programming on the media has been erased from any storage facility internal to such party’s own computer facilities, and

Any verbal descriptions of internal features of any models designated confidential pursuant to the Protective Order shall also be considered trade secrets subject to the Protective Order.

Parties agreeing to be bound by the terms of the Protective Order shall sign the signatory page attached as Appendix B.

Made, entered, and effective ______________, pursuant to OAR 860-012-0035(1)(k).

 This order may be appealed to the Commission pursuant to OAR 860-014-0091. The appeal should be in the form of a motion. See OAR 860-013-0031.