ORDER NO. 99-106

ENTERED FEB 19 1999

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

OF OREGON

UM 918

DISPOSITION:  MOTION FOR ADDITIONAL PROTECTION UNDER PROTECTIVE ORDER GRANTED

PacifiCorp filed a Motion for Additional Protection Under Protective Order on January 22, 1999. ScottishPower plc (ScottishPower) filed a similar motion on January 28, 1999. Both Applicants seek additional protection pursuant to paragraph 16 of the Commission’s standard protective order and Oregon Rule of Civil Procedure (ORCP) 36(C).

PacifiCorp seeks additional protection for its response to Staff Data Requests PC-1 and PC-2, and ScottishPower seeks additional protection for its response to Staff Data Request SP-1. Both companies request that they be allowed to restrict the disclosure of their responses to these data requests to Staff alone.

In support of its motion, PacifiCorp claims that the data requests seek information that is commercially sensitive, including financial information, business and strategic plans, and information on employees and employment issues. Some of the information was disclosed to PacifiCorp by ScottishPower or Salomon Smith Barney upon condition that the information be treated confidentially. PacifiCorp asserts that disclosure of this information would affect the candidness of the analyses provided by its professional advisors, and would harm Scottish Power’s competitive position. In addition, PacifiCorp further stresses that some of its transaction analysis is so sensitive that it has only been seen by a small group of people within the company, and has never been shared with anyone outside the company, including ScottishPower. PacifiCorp contends that the additional protection will significantly limit the risk of an inadvertent breach of confidentiality and the concomitant high risk of competitive harm, especially when the value of the requested information is considered in the context of the overall issues in this case.

ScottishPower makes similar arguments in support of its motion. It also claims that some of the requested information is protected from disclosure by the attorney-client privilege or the work product doctrine. Both PacifiCorp and ScottishPower also allude to a prior Commission order, In Re PGE Customer Choice Plan, Order No. 98-294, Docket UE 102

(July 16, 1998), in which PacifiCorp was granted similar additional protection under the Commission’s standard protective order.

On February 3, 1999, counsel for PacifiCorp filed a letter describing the responses of the parties to the motions, as discussed at the Prehearing Conference held on January 29, 1999. Based upon that discussion, PacifiCorp proposes that its motion be granted. In the event a party concluded that it needed access to the information disclosed to Staff, PacifiCorp would confer with that party about the need for access and the need for limited disclosure. If the issue could not be resolved by agreement, the party could file a motion seeking an exemption from the order granting additional protection. PacifiCorp agrees that it would not claim a party had waived its objection to PacfiCorp’s motion by failure to object at this time. PacifiCorp also suggests that the motion filed by ScottishPower be addressed in the same manner.

We find that PacifiCorp’s proposed procedure for the resolution of the motions for additional protection is a reasonable one. We will therefore grant the motions for additional protection, on the understanding that a party can request an exemption to this order, and the application of the restricted disclosure authorized by this order vis-a-vis that party would be considered at that time. We also caution that this order should not be used as general precedent in support of protection beyond that granted under the Commission’s standard protective order. Prior orders granting additional protection have been narrow rulings that have been considered on a case-by-case basis.

ORDER

IT IS ORDERED that:

The Motion for Additional Protection Under Protective Order filed by PacifiCorp on January 22, 1999, is granted.

PacifiCorp is authorized to restrict disclosure of its responses to Staff Data Requests PC-1 and PC-2 to Staff.

The Motion for Additional Protection Under Protective Order filed by Scottish Power plc on January 29, 1999, is granted.

ScottishPower plc is authorized to restrict disclosure of its response to Staff Data Request SP-1 to Staff.

Made, entered, and effective ____________________________.

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements of OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070. A party may appeal this order to a court pursuant to ORS 756.580.