OAR 860-001-0080: Protective Orders

(1) Protective Orders. The Commission’s protective orders govern the access and use of protected information in Commission proceedings. The purpose of a protective order is to allow parties, including any party that is a limited procedural intervenor and any utility making the filing initiating a proceeding under OAR 860-001-0205, the ability to review protected information while ensuring that it is not disclosed publicly. A general protective order sets forth the processes for a person to become qualified to access protected information, to designate and handle protected information, and to challenge the designation of protected information. For good cause shown, a modified protective order may include specialized restrictions on access to certain highly protected information . (2) General Protective Order. A party may file a motion for a general protective order when it expects a filing or discovery will involve information that falls within the scope of ORCP 36(C)(1). The general protective order, as adopted by the Commission, is available on the Commission’s website and by request from the Administrative Hearings Division. (a) The motion for a general protective order must be made in writing unless otherwise allowed by the Commission or ALJ consistent with OAR 860-001-0420(1). (b) An ALJ may issue a general protective order immediately upon receipt of the motion to facilitate filing of protected information and discovery. Pending the ALJ’s issuance of a general protective order, the information at issue need not be released. (c) The general protective order sets forth the processes for parties to dispute a proposed signatory to a protective order or to challenge the designation of specific information as protected. (3) Modified Protective Order. A party may file a motion under OAR 860-001-0420 for a modified protective order that provides additional protection beyond that provided by the general protective order. A modified protective order may also combine the terms of the general protective order with special provisions for highly protected information, if a party seeks to have one consolidated protective order. A modified protective order provides that certain information is designated as highly protected information. A modified protective order may limit the persons that may access the highly protected information or designate the time or place or special handling for highly protected information. A modified protective order may also require signatories to make a more specific certification that they have a legitimate and non-competitive need for the designated information and not simply a general interest in the proceeding, and that they intend to be actively involved in the docket by filing written materials and participating in proceedings. (a) The motion for a modified protective order must be made in writing unless otherwise allowed by the Commission or ALJ consistent with OAR 860-001-0420(1). The motion must include: (A) The parties and the exact nature of the information involved; (B) The legal basis for the claim that the information is protected under ORCP 36(C)(1) or the Public Records Law; (C) The exact nature of the relief requested; (D) The specific reasons the requested relief is necessary; (E) A detailed description of the intermediate measures, including selected redaction, explored by the parties and why these measures are insufficient; (F) A certification that the requesting party conferred with the other parties regarding the request for a modified protective order indicating whether the parties support the motion; and (G) A draft of the requested modified protective order. (b) If the motion is being filed prior to parties being identified, the Filing Center will serve the motion to the generic industry list. (c) The ALJ will provide expedited review of any motion for modified protective order and may issue a modified protective order within 3 business days to facilitate filing of protected information and discovery . Pending the ALJ’s issuance of a modified protective order , the information at issue need not be released. (d) As a substantive motion, any response to a motion for a modified protective order regarding the terms of the modified protective order must be filed within 15 days of filing of the motion, and the moving party may file a reply within 7 days, consistent with OAR 860-001-0420(4) and (5). A modified protective order will set forth separate processes for parties to dispute a proposed signatory to the protective order, or to challenge the designation of information as protected or highly protected. (e) When a response is filed to the motion for modified protective order, the ALJ will conduct a de novo review of the terms of the modified protective order. The ALJ will issue a ruling explaining the ALJ’s determination. If the ALJ’s determination requires changes to the terms of the modified protective order previously issued, the ALJ will issue an amended modified protective order, explaining if signatory pages need to be refiled. (f) Under OAR 860-001-0110, a party may request that the ALJ certify to the Commission the determination resulting from the de novo review. A party must make this certification request within 15 days of the date of service of the applicable ALJ’s decision. (g) If a modified protective order requires signatories to certify active participation in the proceeding, (A) A certifying party may decertify itself as eligible to receive information under the modified protective order; or (B) A certifying party may be decertified as eligible to receive information under the modified protective order after a motion by another party or the ALJ’s own motion for failing to fully participate in the proceeding. A certifying party who is the subject of a motion to decertify may file a response within 15 days of the motion to decertify. (4) A party alleging that the terms of a protective order have been violated may file a complaint under ORS 756.500, or the Commission may, on the Commission’s own initiative, file such complaint. Any person that fails to comply with the terms of a protective order may be subject to sanctions. Depending upon the severity of the violation, the Commission may impose any sanction it deems appropriate, up to and including: (a) Issuing a public reprimand; (b) Expelling the person or associated party from the proceeding in which the protective order was violated; (c) Prohibiting the person or associated party from appearing in future proceedings; (d) Imposing penalties under ORS 756.990(2)(c); or (e) Reporting any attorney that violated the protective order to the bar association in all states where the attorney is admitted to practice law.