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002 City Motion for Protective Order with exhibit and Proposed OrderDISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 6th Street Boulder, Colorado 80302 Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY, MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. Attorneys for Petitioner, City of Boulder: Attorney Name: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 Hamre, Rodriguez, Ostrander & Dingess, PC Address: 3600 S. Yosemite Street, Suite 500 Denver, Colorado 80237 Phone Number: 303.779.0200 Fax Number: 303.779.3662 Email: dostrander@hrodlaw.com rrodriguez@hrodlaw.com Attorney Name: Office of the Boulder City Attorney Thomas A. Carr, No. 42170, City Attorney Kathleen E. Haddock, No. 16011, Senior Counsel Address: P.O. Box 791 Boulder, CO 80306 Phone Number: 303.441.3020 Fax Number: 303.441.3859 Email: carrt@bouldercolorado.gov haddockk@bouldercolorado.gov  COURT USE ONLY  Case No. 2019CV030637 Division: MOTION FOR PROTECTIVE ORDER DATE FILED: July 8, 2019 4:28 PM FILING ID: 744F975E5EA5D CASE NUMBER: 2019CV30637 2 Pursuant to C.R.C.P. 26(c), the Petitioner, City of Boulder, by and through its counsel of record, requests a Protective Order for handling certain confidential information to be produced by Petitioner in connection with the above-captioned condemnation proceeding (the “Condemnation Action”); and further requests that the Order apply to Petitioner and all Respondents (the “Parties”). CERTIFICATION REGARDING CONFERRAL Pursuant to C.R.C.P. 121, § 1-15(8), undersigned counsel certifies that in good faith the City’s counsel has conferred with Jack Sperber, outside counsel for Respondent Xcel Energy, who stated that he wants the opportunity to review the Motion before taking a position on the requested relief in this Motion. 1. In the Condemnation Action, Petitioner seeks to acquire facilities and permanent and temporary easements in order to reconfigure the existing electrical distribution system serving customers in the City into two independently operating distribution systems; one operated by the City for customers inside the City and the other operated by Public Service Company of Colorado d/b/a Xcel Energy (“Xcel”) for its customers. 2. Petitioner has identified the property to be acquired by detailed exhibits listing over 100,000 individual pieces of equipment and lists of reception numbers for associated property interests, one-line and general arrangement diagrams for substations, and a map in ARCGIS format that identifies all of the electric facilities related to the distribution system by type and location (the “Exhibits”). Petitioner believes all of the property to be acquired is owned by Xcel. 3. The Exhibits containing the location or description of electric distribution facilities that are confidential and highly sensitive and constitute CEII, as defined below, and the improper use or dissemination of the Exhibits implicates national security concerns. 3 4. It will be necessary in the Condemnation Action that future exhibits and discovery requests and responses will including additional confidential information or CEII. 5. Petitioner asserts that a protective order is necessary in the Condemnation Action to prevent the improper dissemination and use of the Exhibits. 6. Therefore, Petitioner requests that the Court enter a protective order limiting the use of Confidential Information including the following definitions and terms: DEFINITIONS “CEII” means Critical Energy Infrastructure Information that has been previously designated as such when filed with the Federal Energy Regulatory Commission (“FERC”), or by Petitioner in connection with the Condemnation Action, including information about proposed or existing Critical Infrastructure that: (i) relates to the production, generation, transportation, transmission, or distribution of energy; (ii) could be useful to a Person in planning an attack on the Critical Infrastructure; (iii) is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; (iv) is subject to restriction on disclosure established under authority of state or federal laws ((e.g. C.R.S. § 24-33.5-1602, or 42 U.S.C. § 5195c(e)) or (v) does not simply give the general location of the Critical Infrastructure. The Exhibits, as defined above, constitute CEII. “Confidential Information” means the Plans and any other CEII disclosed in the course of the Condemnation Action, in addition to any other confidential, financial, business information or personal information, or trade secrets that meet the standards of C.R.C.P. 26(c), contained in any document, file, portions of files, transcribed testimony, or response to a discovery request, including any extract, abstract, chart, summary, note, or copy made therefrom – not made available to the 4 public – and designated by Petitioner in the manner provided in Paragraph 1 below. “Critical Infrastructure” means systems and assets, whether physical or virtual, that are so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on the security, national economic security, national public health or safety, or any combination of those matters. “Person” means an individual, partnership, corporation, business trust, limited liability company, unincorporated association, trust, joint venture, or any other entity or governmental authority. “Security Breach” means (i) any actual or reasonably suspected unauthorized or accidental access, use, loss, or disclosure of any Confidential Information which compromises the integrity and confidential nature of such Confidential Information, or (ii) a breach of one of the Respondent- Landowners’ security or information systems that could reasonably be expected to expose any Confidential Information to such unauthorized or accidental access or use. TERMS OF CONFIDENTIALITY 1. Designation of Confidential Information. Where Confidential Information is produced, provided or otherwise disclosed by any Party, it will be designated in the following manner: a) By imprinting the word “Confidential” on each page of the document produced; b) With respect to electronically stored information that is not bates numbered, by imprinting the word “Confidential” on the compact disc, flash drive, Electronic File such as program containing GIS information that can be 5 accessed through the City of Boulder by email after inputting a security code, through any File Share program that has a link to access files that are produced via email, via hand delivery by a courier, via US Mail that holds the material produced; c) By imprinting the word “Confidential” next to or above any response to a discovery request; or d) With respect to deposition testimony, by designating such testimony as confidential in the manner provided in Paragraph 2(g) below. 2. Restrictions on Disclosure and Use of Confidential Information. a) Obligation of Confidentiality. The Parties shall keep the Confidential Information strictly confidential and shall not, without the prior written consent of Petitioner, disclose any Confidential Information, directly or indirectly, except as expressly set forth in this Protective Order. Access to the Confidential Information shall be restricted to the following Persons: (i) Officers, employees and agents of any Party who are directly involved in the Condemnation Action and have an absolute need to know; (ii) Counsel of the Parties and the counsel’s staff; (iii) Expert witnesses and consultants retained by a Party who are directly involved in the Condemnation Action and have an absolute need to know; 6 (iv) Persons authorized to record or transcribe a proceeding at which the Confidential Information is disclosed; and (v) Court personnel involved in the Condemnation Action. b) Recipients of Confidential Information. Prior to disclosure of any Confidential Information as permitted by the Protective Order, each potential recipient of Confidential Information shall be identified to counsel for the other Parties and shall execute and provide to an Affirmation of and Consent to be Bound by Protective Order in the form attached hereto as Exhibit A. Any disclosure of Confidential Information by any Party must be in properly secured or encrypted formats. Each Party shall remain responsible for the acts and omissions of any recipient of Confidential Information listed in Paragraph 2(a)(i)-(iii) as though they were the acts and omissions of the Party itself. c) Compelled Disclosures. In the event that any Party or anyone to whom a Party has disclosed Confidential Information as permitted by the Protective Order are requested or required by a court or governmental agency to disclose any Confidential Information, the Party will provide written notice of the request or requirement to Petitioner and cooperate with Petitioner to prevent or limit the disclosure to the extent allowed by applicable law or regulation. d) Limited Use of Confidential Information. No Party shall use, or permit recipients of Confidential Information to use, Confidential Information except for the purposes of the Condemnation Action. No Party shall sell, assign, lease, or otherwise commercially exploit the Confidential Information. 7 e) Ownership. The Parties acknowledge that Petitioner is the sole and exclusive owner of the Confidential Information provided by the City, and Xcel is the owner of any Confidential Information provided by Xcel. No Party acquires any right, title, license or interest in the Confidential Information except the limited right to use the Confidential Information as provided herein. f) Expert Reports. Portions of expert reports that summarize, excerpt, or discuss the Confidential Information shall be redacted to the extent produced to outside parties. g) Depositions. Any deposition testimony in which Confidential Information is likely to be referred to or disclosed shall be subject to the following restrictions: (i) Only Persons who are authorized by Paragraph 2(a) of this Stipulated Protective Order to have access to Confidential Information shall be permitted to attend the proceeding in which such testimony is given; (ii) At any time in the proceeding, Petitioner may declare that the testimony being given is confidential; and (iii) If the testimony is declared confidential, the reporter or other Person transcribing the testimony shall mark such identified portions of the transcripts confidential, and such identified portions of the transcripts shall be subject to the terms of this Protective Order to the same extent as is all other Confidential Information. 8 h) Court or Commissioner Proceedings. This Protective Order shall apply to the disclosure of Confidential Information at any Court or commissioner proceeding through receipt of evidence or through testimony of witnesses. Should any Party use Confidential Information in any Court or commissioner proceeding in the Condemnation Action or any appeal therefrom, the Party shall request that the Court or commissioners accept the information under seal and shall request that appropriate steps be taken to prevent disclosure, including, if necessary, the exclusion of Persons and witnesses and the sealing of the pertinent parts of the Court records. The use of Confidential Information in any Court or commissioner proceeding shall not prejudice in any way the rights of any Person to petition the Court for such further protective measures as may be necessary to protect the confidentiality of such material. i) Outside Parties. In the event any Respondent desires to provide access to or discuss or communicate about Confidential Information to a Person not listed in Paragraph 2(a), the Respondent shall first notify Petitioner, in writing, of this intent. Within seven business days of receipt of such notice, Petitioner will notify Respondent of any objections. If Petitioner objects to providing access to such Person, Respondent may not disclose the Confidential Information but may move the Court for an order that such Person be given access to the Confidential Information. In the event the motion is granted, such Person may have access to the Confidential Information, but only subject to the terms and conditions set forth in this Protective Order and after executing and providing to Petitioner’s undersigned counsel an Affirmation of and Consent to be Bound by Stipulated Protective Order in the form attached hereto as Exhibit A. 9 j) Return or Destruction of Confidential Information. Within 35 days after the final determination of the Condemnation Action, including appeals, Respondents and any Persons who have received Confidential Information pursuant to Paragraph 2(a)(i)-(iii) shall (1) return all Confidential Information, including all originals and copies, to Petitioner; and (2) promptly and securely destroy all written, printed or other material or information derived from the Confidential Information. The termination of the Condemnation Action shall not relieve the Parties and Persons obligated hereunder from their responsibility to maintain the confidentiality of the Confidential Information, and the Court shall retain continuing jurisdiction to enforce the terms of this Stipulated Protective Order. 3. Data Security and Security Breach. a) Data Security. Each Respondent represents and warrants that it has developed and implemented and shall, throughout the pendency of the Condemnation Action, maintain, monitor, and update a written, comprehensive information security program covering all of the Confidential Information within its possession or under its control (“Security Program”). Such Security Program shall include commercially reasonable physical, technical and administrative measures to safeguard the confidentiality, security and integrity of such Confidential Information and the collection, handling, delivery, processing, and transmission thereof against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing. b) Security Breach. Respondents will provide all necessary and reasonable cooperation to Petitioner with respect to the notification, investigation, and prosecution of any 10 Security Breach. Respondents will notify Petitioner promptly, but in no event later than forty- eight (48) hours of any Security Breach, by calling the IT representative in the City Attorney’s Office at 303-441-3020 and delivering a written follow-up to such oral notice to Petitioner’s undersigned counsel no later than three (3) days thereafter. Unless attributable wholly and directly to Petitioner, Respondents will promptly (i) take all reasonable measures to remediate any such Security Breach; (ii) provide Petitioner a written report of Respondents’ remediation efforts; and (iii) provide Petitioner a written plan identifying the measures Respondents will implement to avoid any subsequent Security Breach of a similar nature. Petitioner will determine whether and when to notify any individuals regarding any Security Breach involving Petitioner’s Confidential Information. 4. Critical Energy Infrastructure Information. a) The obligations of the Respondents included in this Paragraph 4 in respect of CEII are in addition to, and not in limitation of, Respondents’ obligations with respect to Confidential Information. b) Respondents acknowledge that Petitioner is a public utility subject to FERC standards of conduct rules regarding disclosure of non-public transmission information to its merchant function and marketing affiliate personnel (18 C.F.R. Part 358 effective November 26, 2008). c) Respondents will not reveal any non-public transmission information to any Person employed by Petitioner in a sales or marketing function of Petitioner or by an energy affiliate (as those terms are defined in 18 C.F.R. Part 358). 11 d) Each Respondent certifies on behalf of itself and its employees, agents, and representatives that it and they are aware of the requirements of 18 C.F.R. Part 388. Each Respondent further certifies that after diligent review of 18 C.F.R. Part 388, it has no reason to believe that it or any of its employees, agents or representatives who may be granted access to CEII would be restricted from access to such CEII pursuant to 18 C.F.R. Part 388. 5. General. a) Petitioner asserts that the potential harm to the privacy of the Parties outweighs any competing public interest for disclosure of the Confidential Information. It is in the interest of the Parties to the Condemnation Action that this Protective Order be entered by the Court. b) By accepting documents identified as Confidential Information each Respondent agrees that he, she, or it shall be bound by the terms of this Protective Order upon acceptance of the Confidential Information. Respectfully submitted this 8th day of July, 2019. BOULDER CITY ATTORNEY’S OFFICE Thomas A. Carr, No. 42170, City Attorney Kathleen E. Haddock, No.16011, Senior Counsel HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. /S/ DONALD M. OSTRANDER’S DULY SIGNED PHYSICAL COPY OF THIS DOCUMENT IS ON FILE AT THE OFFICE OF HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. PURSUANT TO CRCP RULE 121, SECTION 1-26(9) By: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 ATTORNEYS FOR PETITIONER Enclosures - Exhibit A 12 CERTIFICATE OF SERVICE I hereby certify that on the 8th day of July, 2019, a true and correct copy of the foregoing MOTION FOR PROTECTIVE ORDER AND PROPOSED ORDER GRANTING MOTION FOR PROTECTIVE ORDER was sent via Colorado Courts E-Filing or sent via e- mail or placed in the United States mail, first class, postage prepaid, and properly addressed to the following: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation d/b/a Xcel Energy Registered Agent Corporation Service Company 1900 W. Littleton Blvd Littleton, Colorado 80120 MORGAN GUARANTY TRUST COMPANY OF NEW YORK JP Morgan Chase Bank 1111 Polaris Parkway Columbus, OH 43240 Respondent Paul Weissmann, in His Official Capacity As Treasurer Of Boulder County Boulder County Treasurer 1325 Pearl Street Boulder, Colorado 80302 Courtesy copy emailed to Outside Counsel for Xcel Energy John R. Sperber Faegre Baker Daniels LLP 1470 Walnut Street, Suite 300 Boulder, Colorado 80302 jack.sperber@faegreBD.com HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. /s/ Lori A. Argo By: EXHBIIT A I, , swear and affirm on behalf of Respondent , have read the Motion for Protective Order and Order entered by the Court and hereby agrees to be bound by the terms and conditions as set for in the Motion for Protective Order. I also agree to hold anyone in my office assisting me on this case to be bound by the same terms and conditions. Signed this day of July, 2019. ____________________________________ COUNTY OF ____________ ) ) ss STATE OF COLORADO ) Subscribed and sworn to before me this day of July, 2019, by . Notary Public My Commission Expires DATE FILED: July 8, 2019 4:28 PM FILING ID: 744F975E5EA5D CASE NUMBER: 2019CV30637 DISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 6th Street Boulder, Colorado 80302 Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY, MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County.  COURT USE ONLY  Case No. 2019CV030637 Division: ORDER GRANTING MOTION FOR PROTECTIVE ORDER THIS MATTER comes before the Court pursuant to Petitioner’s Motion for Protective Order of Confidential documents/files. The Court having read the Motion, Response and Reply and being fully advised in the premises, hereby GRANTS the Motion and ORDERS that any party involved in this matter shall be bound by the terms of this Protective Order Upon acceptance of the Confidential Information. The parties shall each sign an affidavit that shall be emailed to all parties stating that the parties agree to the terms and definitions as stated in the Motion for Protective Order. Done this ______ of ___________, 2019. BY THE COURT: ________________________ DISTRICT COURT JUDGE cc: All parties or counsel of record. DATE FILED: July 8, 2019 4:28 PM FILING ID: 744F975E5EA5D CASE NUMBER: 2019CV30637