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Protective Orders and Confidential Info
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In complex cases, utilities often request the ALJ to issue a Protective Order to govern the disclosure of confidential information. To obtain a protective order, a utility generally has to show that material relevant to the case includes confidential and proprietary information, and that the release of that information will harm the company.
Issuing Protective Orders
OAR 860-012-0035(1)(k) authorizes the ALJ to issue a Protective Order upon a showing of good cause. The terms for handling confidential information are set forth in the Appendix to the order.
What does the Standard Protective Order do?
A general protective order adopts a process through which parties shall resolve discovery disputes that include sensitive information. It shields no specific documents and makes no judgment as to whether any particular document is a trade secret or contains commercially-sensitive information. Rather, the order permits the broadest possible discovery consistent with the need to protect confidential information.
Under the terms of the order, any party may designate, as confidential, any information that it reasonably believes falls within the scope of ORCP 36(C)(7). Any such designation must be made in good faith, and be limited to only those portions of the document that qualify as a protected trade secret or other confidential research, development, or commercial information. Any other party may challenge the designation of any information as confidential. At that point, the designating party bears the "burden of showing that the challenged information falls within ORCP 36(C)(7)."
Confidential information shall be disclosed only to a "qualified person" as defined in the order. Authors of the confidential material, the Commission or its Staff, and counsel of record for a party or persons directly employed by counsel are "qualified persons" who may review confidential information with no need to individually sign the Protective Order. Other persons desiring confidential information must become qualified pursuant to terms set out in the protective order.
To receive confidential information, all parties—with the general exception of Staff—must sign a Consent to be Bound Form attached as the order. This includes the party seeking the issuance of the Protective Order, because any party may designate information as confidential under this order.
All persons who are given access to confidential information have the good faith obligation to monitor their own conduct to ensure their compliance with the General Protective Order. Such persons shall not use or disclose the information for any purpose other than the preparation for and conduct of this proceeding, and shall take all reasonable precautions to keep the confidential information secure.
Service of Documents with Confidential Information
When feasible, confidential information should be delivered to counsel of record for the party requesting the information on yellow paper.
The envelope/container must 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.
AHD stores the confidential information in a locked cabinet dedicated to the storage of confidential information.
Duration of Protection
The confidentiality of information subject to a protective order is preserved until the Commission, by order, terminates the protection. If the Commission terminates protection, the information may be transferred to the State Archives for storage. Otherwise, AHD stores the confidential information until it can be destroyed pursuant to the agency’s Records Retention Schedule approved by the Oregon State Archives, which is attached as Appendix B. Kathy Williams is currently the agency’s records officer to coordinate the Commission's records management program and to act as a liaison with the State Archivist.
Appeal of Protective Orders
A party may appeal a Protective Order to the Commission pursuant to OAR 860-014-0091.
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