Current through Register Vol. 63, No. 9, September 1, 2024
(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 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.
Tables referenced are not included in rule text.
Click here for PDF
copy of table(s).]
Statutory/Other Authority: ORS
756.040 &
756.060
Statutes/Other Implemented: ORCP(36), ORS
756.040,
756.055 & 756.990
