NOTICES
Protective Order
[33 Pa.B. 5277] Public Meeting held
October 2, 2003Commissioners Present: Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland, abstaining
Investigation into the Obligations of Incumbent Local Exchange Carriers to Unbundle Local Circuit Switching for the Enterprise Market; Doc. No. I-00030100
Investigation into the Obligations of Incumbent Local Exchange Carriers to Unbundle Network Elements; Doc. No. I-00030099
Development of an Efficient Loop Migration Process; Doc. No. M-00031754
Protective Order By the Commission:
In accordance with the Commission's Procedural Order, adopted this same date in the previously captioned proceedings and in recognition that documents, information and other materials submitted to the Commission and provided to the parties in the course of the investigations into the obligations of incumbent local exchange carriers to unbundle network elements and the development of an efficient loop migration process may represent or contain proprietary or highly confidential information, the Commission hereby enters this Protective Order. As part of this Protective Order, we also adopt the following Confidentiality Agreement to ensure that proprietary or confidential information is afforded protection from unwarranted disclosure, while permitting parties appropriate access to proprietary or confidential information, Therefore:
It Is Ordered That:
1. This Protective Order is entered with respect to all materials and information identified at Ordering Paragraph No. 2 that are filed with the Commission, produced in discovery or otherwise presented during any proceedings. All persons now and hereafter granted access to the materials and information identified in Ordering Paragraph No. 5 shall use and disclose the information only in accordance with this Protective Order.
2. The materials subject to this Protective Order include all correspondence, documents, data, information, studies, methodologies and other materials that a party (or an affiliate of a party) furnishes in the previously captioned proceedings under Commission rules, regulations, discovery procedures or cross-examination or provides as a courtesy to a party to this proceeding, which materials are claimed to be of a proprietary or confidential nature and that are designated ''PROPRIETARY INFORMATION.''
3. The parties may designate extremely sensitive Proprietary Information as ''HIGHLY CONFIDENTIAL'' and secure additional protections as set forth in this Protective Order pertaining to the material. The Highly Confidential Information shall be only a subset of Proprietary Information as constitutes or describes the producing party's marketing plans, competitive strategies, market share projections, marketing materials that have not yet been used, customer-identifying information or customer prospects for services that are subject to competition.
4. Proprietary Information and Highly Confidential Proprietary Information shall be made available to the Commission and any retained Commission experts, as well as the statutory advocates, for use in this proceeding. For purposes of filing, to the extent that Proprietary Information or Highly Confidential Proprietary Information is placed in the Commission's report folders, the information shall be marked and handled in accordance with routine Commission procedures inasmuch the report folders are not subject to public disclosure. To the extent the Proprietary Information or Highly Confidential Proprietary Information is placed in the Commission's testimony or document folders, the information shall be separately bound, conspicuously marked and accompanied by a copy of this Protective Order. Public inspection of Proprietary Information and Highly Confidential Proprietary Information shall be permitted only in accordance with this Protective Order.
5. Proprietary Information and Highly Confidential Proprietary Information shall be made available to counsel of record in this proceeding (including secretaries, legal assistants or other employees of counsel) under the following procedures:
a. Proprietary Information. To the extent required for participation in this proceeding, counsel for a party (retaining party) may have access to Proprietary Information made available by another party (producing party) to the retaining party's expert(s), subject to the following restrictions.
i. The expert may not hold any of the following positions with any actual or potential competitor of the producing party: (a) an officer, board member, stockholder, partner, owner other than stock of the producing party or an employee of any competitor of the producing party; or (b) an officer, board member, stockholder, partner, owner other than stock of any affiliate of a competitor of the producing party; provided, however, that any expert shall not be disqualified on account of being a stockholder, partner or owner unless his/her interest in the competitor's business creates a significant potential for violations of the limitations of permissible use of the Proprietary Information. For purposes of this Protective Order, stocks, partnership or other ownership interest valued at less than $100,000 and/or constituting less than a 2% interest in a business does not, in itself, establish a significant potential for violation.
ii. If a retaining party's independent expert, another member of the independent expert's firm or the independent expert's firm generally also serves as an expert for, or as a consultant or advisor to a competitor or any affiliate of a competitor of the producing party, the independent expert must: (1) advise the producing party of the competitor's or affiliate's names(s); (2) make reasonable attempts to segregate those personnel assisting in the expert's participation in this proceeding from those personnel working on behalf of a competitor or any affiliate of a competitor of the producing party; and (3) if segregation of the personnel is impractical, the independent expert shall give to the producing party written assurances that the lack of segregation will in no way jeopardize the interests of the producing party. The producing party retains the right to challenge the adequacy of the written assurances that its interests will not be jeopardized.
b. Highly Confidential Proprietary Information. Highly Confidential Proprietary Information shall be produced only for inspection by the retaining party's counsel of record. If the inspecting lawyer desires copies of the material or desires to disclose its contents to other persons, he or she shall submit a written request to the producing party's counsel. If requesting and producing parties are unable to reach agreement with respect to such a request, they may submit the issue orally to the presiding Administrative Law Judge (ALJ).
c. No other persons may have access to the Proprietary Information or Highly Confidential Proprietary Information except as authorized by order of the Commission or the presiding ALJ.
6. Persons obtaining access to Proprietary Information or Highly Confidential Proprietary Information under this Protective Order shall use the information only in the conduct of this proceeding and any administrative or judicial proceeding arising from this proceeding and shall not use the information for any other purpose, including business, governmental, commercial or other administrative or judicial proceedings. No person who may be entitled to receive, or who is afforded access to, any Proprietary Information or Highly Confidential Proprietary Information shall use or disclose the information for any other purpose, including business, governmental, commercial or other administrative or judicial proceedings.
7. Prior to making Proprietary Information or Highly Confidential Proprietary Information available to any person as provided in Ordering Paragraph No. 5, counsel shall deliver a copy of this Protective Order to the person and shall receive a written acknowledgment from that person in the applicable form in Appendix A to this Protective Order and designated as the Confidentiality Agreement. Counsel shall promptly deliver to the producing party a copy of the executed Confidentiality Agreement. A copy of any executed Confidentiality Agreement must be filed with the Secretary's Bureau.
8. A producing party shall designate the data or documents as constituting or containing Proprietary Information or Highly Confidential Proprietary Information by affixing an appropriate proprietary stamp or typewritten designation on the data or documents. Where only part of the data compilations or multipage documents constitutes or contains Proprietary Information or Highly Confidential Proprietary Information, the producing party shall so designate only the specific data or pages which constitute or contain Proprietary Information or Highly Confidential Proprietary Information.
9. Any public reference to Proprietary Information or Highly Confidential Proprietary Information by counsel or persons afforded access thereto shall only be to the title or exhibit reference in sufficient detail to permit persons with access to the Proprietary Information or Highly Confidential Proprietary Information to fully understand the reference and not more.
10. The Proprietary Information or Highly Confidential Proprietary Information shall remain a part of the record, to the extent admitted into the record, for all purposes of administrative or judicial review. The part of the record in this proceeding containing Proprietary Information or Highly Confidential Proprietary Information, including but not limited to all exhibits, writings, testimony, cross-examination, argument and responses to discovery, and including reference thereto as mentioned in ordering Ordering Paragraph No. 9, shall be sealed for all purposes, except as provided herein, including administrative and judicial review, unless the Proprietary Information or Highly Confidential Proprietary Information is released from the restrictions of this Protective Order, either through the agreement of the parties or under an order of an ALJ or the Commission.
11. The parties affected by the terms of this Protective Order shall retain the right to: (1) question or challenge the alleged proprietary or confidential nature of Proprietary Information or Highly Confidential Proprietary Information; (2) question or challenge the admissibility of Proprietary Information or Highly Confidential Proprietary Information; (3) refuse or object to the production of Proprietary Information or Highly Confidential Proprietary Information on any proper ground, including but not limited to irrelevance, immateriality or undue burden; (4) seek an order permitting disclosure of Proprietary Information or Highly Confidential Proprietary Information beyond that allowed in this Protective Order; (5) and to seek additional measures or protection of Proprietary Information or Highly Confidential Proprietary Information beyond those provided in this Protective Order. If a challenge is made to the designation of a document or information as Proprietary Information or Highly Confidential Proprietary Information, the party claiming that the information is Proprietary Information or Highly Confidential Proprietary Information bears the burden of demonstrating that the designation is necessary and appropriate. Unresolved challenges shall be decided on motion or petition by the presiding ALJ or the Commission as provided by 52 Pa. Code § 5.423(a). All challenges will be resolved in conformity with exiting rules, regulations, orders, statutes, precedent, and the like, to the extent that guidance is available.
12. Upon completion of this proceeding and any FCC, administrative or judicial proceeding arising from this proceeding, all copies (except as have been filed with the Commission or used or created by the Commission or its experts using same) of all documents and other materials, including notes, which contain any Proprietary Information or Highly Confidential Proprietary Information, shall be immediately returned upon request to the providing party
13. The Secretary's Bureau is directed to serve this Order upon all jurisdictional telecommunication carriers, as well as the Pennsylvania Telephone Association, the Office of Consumer Advocate, the Office of Small Business Advocate and the Office of Trial Staff.
14. The Secretary's Bureau is directed to publish this Order in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
Appendix A-1
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Investigation into the Obligations of Incumbent Local Exchange Carriers to Unbundle Local Circuit Switching for the Enterprise Market Docket No. I-00030100
CONFIDENTIALITY AGREEMENT TO WHOM IT MAY CONCERN:
The undersigned is the ______ of ______ (retaining party) and is not, or has no knowledge or basis for believing that he/she is: (1) an officer, board member, stockholder, partner or owner other than stock of any competitor of ______ (producing party) or an employee of any competitor of the producing party who is primarily involved in the pricing, development, and/or marketing of products or services that are offered in competition with those of the producing party; or (2) an officer, board member, stockholder, partner, or owner than stock of any affiliate of a competitor of the producing party. (See ¶5 of Protective Order).
The undersigned has read the Protective Order and understands that it and this Confidentiality Agreement deal with the treatment of Proprietary Information and Highly Confidential Proprietary Information. The undersigned agrees to be bound by, and to comply with, the terms and conditions of said Protective Order as a condition of access to the Proprietary Information and Highly Confidential Proprietary Information. Further, the undersigned, if an independent expert, represents that he/she has complied with the provisions of ordering paragraph number 5(a)(ii) of the Protective Order prior to executing this Confidentiality Agreement.
DATE: ______ _________________ Signature _________________ Print Name _________________ Status relative to Retaining Party _________________ Employer _________________ Address
Appendix A-2
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg PA 17105-3265
Investigation into the Obligations of Incumbent Local Exchange Carriers to Unbundle Network Elements Docket No. I-00031754
CONFIDENTIALITY AGREEMENT TO WHOM IT MAY CONCERN:
The undersigned is the ______ of ____ (retaining party) and is not, or has no knowledge or basis for believing that he/she is: (1) an officer, board member, stockholder, partner or owner other than stock of any competitor of ______ (producing party) or an employee of any competitor of the producing party who is primarily involved in the pricing, development, and/or marketing of products or services that are offered in competition with those of the producing party; or (2) an officer, board member, stockholder, partner, or owner than stock of any affiliate of a competitor of the producing party. (See ¶5 of Protective Order).
The undersigned has read the Protective Order and understands that it and this Confidentiality Agreement deal with the treatment of Proprietary Information and Highly Confidential Proprietary Information. The undersigned agrees to be bound by, and to comply with, the terms and conditions of said Protective Order as a condition of access to the Proprietary Information and Highly Confidential Proprietary Information. Further, the undersigned, if an independent expert, represents that he/she has complied with the provisions of ordering paragraph number 5(a)(ii) of the Protective Order prior to executing this Confidentiality Agreement.
DATE: ______ _________________ Signature _________________ Print Name _________________ Status relative to Retaining Party _________________ Employer _________________ Address
Appendix A-3
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg PA 17105-3265
Development of an Efficient Loop Migration Process Docket No. M-00030099
CONFIDENTIALITY AGREEMENT TO WHOM IT MAY CONCERN:
The undersigned is the ______ of ______ (retaining party) and is not, or has no knowledge or basis for believing that he/she is: (1) an officer, board member, stockholder, partner or owner other than stock of any competitor of ______ (producing party) or an employee of any competitor of the producing party who is primarily involved in the pricing, development, and/or marketing of products or services that are offered in competition with those of the producing party; or (2) an officer, board member, stockholder, partner, or owner than stock of any affiliate of a competitor of the producing party. (See ¶5 of Protective Order).
The undersigned has read the Protective Order and understands that it and this Confidentiality Agreement deal with the treatment of Proprietary Information and Highly Confidential Proprietary Information. The undersigned agrees to be bound by, and to comply with, the terms and conditions of said Protective Order as a condition of access to the Proprietary Information and Highly Confidential Proprietary Information. Further, the undersigned, if an independent expert, represents that he/she has complied with the provisions of ordering paragraph number 5(a)(ii) of the Protective Order prior to executing this Confidentiality Agreement.
DATE: ______ _________________ Signature _________________ Print Name _________________ Status relative to Retaining Party _________________ Employer _________________ Address
[Pa.B. Doc. No. 03-2058. Filed for public inspection October 17, 2003, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
