CALDERWOOD & HARKNESS LLP Attorneys at Law
1601 K Street NW, Suite 900 Washington, DC 20006
Telephone: (202) 555-4100 Facsimile: (202) 555-4101 www.calderwoodharkness.com
Brett Callahan Lead Associate, Energy & Infrastructure Direct Dial: (202) 555-4138
Email: bcallahan@calderwoodharkness.com
DC Bar No. 1078523
Responsible Partner: George Trujillo, Esq.
September 26, 2022
VIA EMAIL AND FIRST-CLASS MAIL
William Pratt, Esq. Senior Partner Kellner, Royce & Dillard LLP One PPG Place, Suite 2800 Pittsburgh, PA 15222
Re: Proposed Protective Order for Exchange of Confidential and Commercially Sensitive Information — FERC Docket Nos. RP22-847-000 and RP22-847-001 (Ridgeline Midstream Services LLC)
C&H Matter No.: 1016-00005
Dear Mr. Pratt:
I. Introduction and Purpose
This firm represents Ridgeline Midstream Services LLC ("Ridgeline") in the above-referenced proceeding before the Federal Energy Regulatory Commission ("FERC" or the "Commission"). I write to propose terms for a protective order governing the exchange of confidential and commercially sensitive business information between Ridgeline and your client, Appalachian Trunk Pipeline Company, LLC ("ATPC"), in connection with the contested interconnection cost allocation issues pending in Docket No. RP22-847-001.
As you are aware, Ridgeline filed its application for initial tariff rate approval and interconnection authorization with the Commission on May 12, 2022, in Docket Nos. RP22-847-000 (rate case) and RP22-847-001 (interconnection authorization). Following the close of the intervention period and the submission of protests and comments, the Commission issued an order dated September 22, 2022, granting all timely-filed interventions, setting the matter for hearing pursuant to a Track II procedural schedule, and consolidating the two dockets for purposes of hearing and decision. The Commission's order appointed the Honorable Clara Whitfield as the presiding Administrative Law Judge and scheduled a prehearing conference for November 14, 2022. The Commission's order also designated the Honorable Howard Margolis as Settlement Judge for purposes of any settlement discussions the parties may wish to undertake.
The purpose of this letter is to propose, in advance of the prehearing conference, the terms under which the parties would exchange confidential and commercially sensitive business information during the course of discovery and in the preparation of testimony. It is our strong preference, and we believe it serves the interests of all parties and of an efficient proceeding, to reach agreement on protective order terms well before the prehearing conference so that a jointly proposed protective order can be submitted to ALJ Whitfield for approval at or in advance of the November 14, 2022 conference. An agreed-upon protective order will enable the parties to commence discovery without delay and will ensure that the Track II procedural schedule established by the Commission is not disrupted by disputes over information access.
We have prepared and enclose with this letter a draft Protective Order (Exhibit A) and a form of Non-Disclosure Agreement for Experts and Consultants (Exhibit B) that reflect the terms discussed in this letter. These are initial drafts, and we welcome your firm's comments, suggested revisions, and counterproposals.
II. Background on Information Exchange Needs
The interconnection cost allocation dispute at the center of Docket No. RP22-847-001 will require the exchange of substantial volumes of confidential and commercially sensitive information by both Ridgeline and ATPC. A brief summary of the dispute and the categories of information likely to be implicated is set forth below to provide context for the protective order terms we propose.
A. Nature of the Dispute. ATPC filed a protest and motion to intervene on August 15, 2022, opposing the proposed interconnection configuration at the Wetzel County Interconnect, located at ATPC Milepost 412.6, and the proposed allocation of approximately $22.3 million in interconnection facilities costs between Ridgeline and ATPC. Under Ridgeline's proposal as set forth in its application, Ridgeline would bear $7.6 million (approximately 34.1%) of the interconnection facilities costs and ATPC would bear $14.7 million (approximately 65.9%) of the interconnection facilities costs. The proposed allocation methodology is based on a relative-benefits analysis that considers, among other factors, the incremental throughput capacity, system integration costs, and downstream market access benefits attributable to each pipeline system as a result of the interconnection.
ATPC's protest contends that Ridgeline's proposed cost allocation methodology improperly shifts $14.7 million in interconnection facilities costs to ATPC and its shippers, and that a more equitable allocation would be a 50/50 cost split, resulting in each party bearing approximately $11.15 million in interconnection facilities costs. ATPC further argues that Ridgeline's application fails to adequately account for the benefits Ridgeline will receive from access to ATPC's existing 640-mile, 3.8 billion cubic feet per day ("Bcf/d") mainline system and the downstream markets served by that system.
Ridgeline filed its answer to the ATPC protest on October 17, 2022, in which Ridgeline responded to ATPC's arguments and provided additional support for its proposed cost allocation methodology. We will not belabor the merits of the parties' respective positions here, as the purpose of this letter is limited to proposing terms for the exchange of confidential information during the proceeding.
B. Categories of Information Likely to Be Exchanged. In light of the issues joined by the protest and answer, the parties will need to exchange detailed cost data, engineering specifications, and financial information both in the course of formal discovery and in the preparation and support of pre-filed testimony. The categories of information that we anticipate will be implicated include, without limitation, the following:
1. Detailed engineering cost estimates for the interconnection metering station, including costs associated with ultrasonic flow meters (3-run, 12-inch configuration), gas chromatographs, Supervisory Control and Data Acquisition ("SCADA") system integration, and pig launcher/receiver facilities at the Wetzel County Interconnect;
2. ATPC system cost data, including capital costs, operating expenses, and throughput data for the 640-mile, 3.8 Bcf/d ATPC pipeline system, to the extent relevant to the cost allocation analysis and the relative-benefits methodology at issue;
3. Ridgeline's construction cost breakdowns for its 187-mile, 24-inch-diameter pipeline system, which had an original construction cost of approximately $587.2 million, including allocated overheads, contingencies, and allowance for funds used during construction ("AFUDC");
4. Rate base components and cost-of-service workpapers for both the Ridgeline and ATPC systems, including depreciation schedules, accumulated deferred income tax data, and working capital allowances;
5. Capital structure information, financing terms, and debt arrangements, including the specific terms of credit facilities, revolving credit agreements, note purchase agreements, and other financing instruments, as well as equity return data and comparable proxy group information;
6. Shipper contract information, throughput volumes, and capacity utilization data, including the terms of individual transportation service agreements, negotiated rate contracts, firm and interruptible capacity commitments, and historical and projected throughput data (Ridgeline's current throughput is approximately 680 million cubic feet per day ("MMcf/d"), reflecting approximately 56.67% utilization of its certificated capacity);
7. Internal financial projections, revenue forecasts, and valuation data, including long-range financial plans, volume growth projections, and discounted cash flow analyses prepared by or on behalf of either party in connection with the interconnection project or the parties' overall business operations; and
8. Proprietary engineering drawings and metering station schematics for the Wetzel County Interconnect, including process flow diagrams, piping and instrumentation diagrams ("P&IDs"), and site layout plans.
Much of this information is highly sensitive from both a commercial and competitive standpoint, particularly given the competitive relationship between Ridgeline and ATPC in the Appalachian Basin natural gas transportation market. Both parties have a strong and legitimate interest in preventing the disclosure of such information to persons who could use it for competitive or commercial purposes unrelated to this proceeding. A robust and carefully structured protective order is therefore essential to ensure the free and efficient exchange of information necessary for the fair adjudication of the cost allocation dispute.
III. Proposed Categories of Protected Information
We propose that the protective order establish two tiers of confidentiality protection, reflecting the varying degrees of commercial sensitivity of the information likely to be exchanged. This two-tier framework is consistent with the approach commonly adopted in FERC proceedings involving the exchange of commercially sensitive information and provides an appropriate balance between the need for broad access to information relevant to the proceeding and the need to protect the parties' legitimate confidentiality interests.
A. "Confidential Information." The first tier, designated "Confidential Information," would encompass commercially sensitive business information that is not generally available to the public. This category would include, by way of illustration and not limitation, cost data, financial information, contractual terms and conditions (other than individual shipper-specific terms), operational statistics, aggregate throughput and capacity utilization data, and engineering information that the producing party reasonably believes would cause competitive harm if disclosed to unauthorized persons. Information in this tier would be subject to access limitations described in Section IV.B below, which permit access by outside counsel, designated in-house employees, retained experts and consultants, FERC Trial Staff, and the presiding judge.
The criteria for designation of information as "Confidential Information" would be as follows: a party may designate information as Confidential Information if the producing party reasonably and in good faith believes that the information (i) constitutes trade secrets, proprietary business information, or commercially sensitive data; (ii) is not generally available to the public; and (iii) if disclosed to unauthorized persons, could reasonably be expected to cause competitive or commercial harm to the producing party or third parties whose information is in the producing party's possession.
B. "Highly Confidential Information — Attorneys' Eyes Only." The second tier, designated "Highly Confidential Information — Attorneys' Eyes Only" (or "HCI-AEO"), would be reserved for the most competitively sensitive materials, the disclosure of which to any in-house employee, officer, or director of a party could pose a significant risk of competitive harm. This category would include, by way of illustration and not limitation, individual shipper contract terms and pricing, internal financial projections and long-range business plans, proprietary engineering designs and schematics, and detailed capital structure and financing information such as specific terms of credit facilities, note purchase agreements, and noteholder arrangements.
The criteria for designation of information as "Highly Confidential Information — Attorneys' Eyes Only" would be as follows: a party may designate information under this tier only if the producing party reasonably and in good faith believes that the information is of such an extraordinarily sensitive nature that disclosure even to authorized in-house employees could create a serious risk of competitive or commercial harm that outweighs the receiving party's interest in internal access to the information for purposes of the proceeding.
C. Burden of Proof. Under either tier, the designating party would bear the burden of demonstrating the appropriateness of the confidentiality designation if challenged by any other party pursuant to the challenge procedures described in Section IV.E below. This allocation of burden is consistent with established FERC precedent and ensures that confidentiality designations are not used as a sword to impede access to information that is relevant and necessary for the fair adjudication of the proceeding.
IV. Proposed Terms of the Protective Order
Set forth below is a summary of the principal terms that we propose for inclusion in the protective order. The enclosed draft Protective Order (Exhibit A) sets forth these terms in full detail and in the form we propose for filing with ALJ Whitfield. We summarize the key provisions here for ease of discussion.
A. Scope and Applicability
The protective order would apply to all documents, data, testimony, exhibits, workpapers, and information of any kind produced or disclosed by any party in connection with Docket Nos. RP22-847-000 and RP22-847-001, whether produced in response to formal discovery requests, provided in connection with informal information exchanges, included in or supporting pre-filed testimony, or otherwise disclosed in the course of the proceeding.
The protective order would be binding on all parties to the proceeding, their respective counsel of record, and all experts, consultants, and other persons who are granted access to protected information pursuant to the terms of the order. The parties and their respective counsel, for purposes of the proposed protective order, include the following:
• Ridgeline Midstream Services LLC, represented by Calderwood & Harkness LLP, Washington, DC (George Trujillo, Responsible Partner; Brett Callahan, Lead Associate);
• Appalachian Trunk Pipeline Company, LLC, represented by Kellner, Royce & Dillard LLP, Pittsburgh, PA (William Pratt, Senior Partner);
We further propose that the protective order be made available for adoption by the other intervenors in this proceeding and by FERC Trial Staff, upon their agreement to be bound by its terms. Specifically, the protective order should be available to the following parties:
• Mountainside Gas Producers Coalition ("MGPC"), represented by Whitmore & Sable LLP;
• Clearwater Municipal Gas Authority ("CMGA"), represented by Fordham Municipal Law Group PC; and
• FERC Trial Staff, including Jonathan Briggs, Lead Trial Attorney, and Dr. Miriam Okafor, Lead Economic Analyst.
We believe that a single, unified protective order applicable to all parties and intervenors is preferable to a patchwork of bilateral confidentiality agreements, as it ensures consistency in protections, simplifies administration, and avoids disputes arising from differing terms among multiple agreements.
B. Access to Confidential Information
We propose that access to information designated as "Confidential Information" be limited to the following categories of persons:
1. Outside counsel of record for any party and their associates, paralegals, legal assistants, and administrative support staff who are directly engaged in work on the proceeding and who have a need to access the information in connection with their work on the matter;
2. Expert witnesses and consultants retained by any party for purposes of the proceeding, including but not limited to Dr. Eleanor Vasquez (retained by MGPC as its rate expert), Dr. Raymond Braswell of Braswell Energy Consulting Group LLC (retained by Ridgeline as its tariff redesign consultant), and any experts or consultants that ATPC, CMGA, or other parties may retain for the proceeding, in each case subject to execution of a Non-Disclosure Agreement in the form of Exhibit B;
3. FERC Trial Staff, acting in their official capacity in connection with the proceeding;
4. The presiding Administrative Law Judge, ALJ Clara Whitfield, and Settlement Judge Howard Margolis; and
5. Not more than two (2) designated in-house employees of each party who are not involved in competitive decision-making on behalf of the party. Each party would be required to identify its designated in-house employees by name and title prior to receiving access to any Confidential Information, and to certify that the designated employees do not participate in, advise on, or have access to decisions regarding marketing, pricing, competitive strategy, or gas transportation contract negotiations.
C. Access to Highly Confidential Information — Attorneys' Eyes Only
Access to information designated as "Highly Confidential Information — Attorneys' Eyes Only" would be more narrowly restricted. We propose that access to HCI-AEO information be limited to the following categories of persons:
1. Outside counsel of record for any party and up to two (2) designated associates per firm who are directly engaged in substantive work on the proceeding;
2. Expert witnesses and consultants retained for purposes of the proceeding, subject to execution of a Non-Disclosure Agreement in the form of Exhibit B that specifically acknowledges the heightened restrictions applicable to HCI-AEO information;
3. FERC Trial Staff, acting in their official capacity in connection with the proceeding; and
4. The presiding Administrative Law Judge, ALJ Clara Whitfield.
Critically, we propose that in-house employees, officers, and directors of any party be expressly excluded from access to HCI-AEO information. This exclusion would apply without limitation to the following individuals:
• Ridgeline personnel: James K. Winfield (Chief Executive Officer), Angela Moretti (Chief Financial Officer), Thomas Greaves (Vice President, Business Development), and Dr. Natasha Orlov (Director of Rates & Regulatory);
• ATPC personnel: Marcus R. Alderman (President) and Sandra K. Fenton (Vice President, Commercial Operations); and
• Principals of parent entities: any officers, directors, or employees of Dunmore Energy Holdings Ltd. (Ridgeline's parent) and Tidewater Infrastructure Partners LP (ATPC's parent) who may have competitive decision-making authority or access to competitively sensitive information.
This restriction reflects the heightened sensitivity of HCI-AEO materials and the significant risk of competitive harm that could result from disclosure of such information—including individual shipper contract terms, internal financial projections, and proprietary engineering designs—to persons who are involved in or have access to competitive business decisions. We recognize that this restriction may limit the ability of in-house personnel to participate directly in certain aspects of the proceeding, but we believe that such limitation is warranted and is the standard approach in FERC proceedings involving direct competitors.
D. Designation Procedures
We propose the following procedures for designating information as Confidential Information or HCI-AEO:
1. Written documents and data. The producing party shall mark each page or document containing protected information with the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," as applicable. Where a document contains both tiers of information, the document shall be marked with the higher designation, and the producing party shall, to the extent practicable, identify the specific portions of the document that warrant the higher designation.
2. Oral disclosures. When a party discloses protected information orally—whether in meetings, telephone conferences, or depositions—the disclosing party shall identify the information as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" at the time of the oral disclosure. Within five (5) business days of the oral disclosure, the disclosing party shall confirm the confidentiality designation in writing to the receiving party's counsel of record.
3. Deposition testimony. Any party or deponent may designate portions of deposition testimony as containing Confidential Information or HCI-AEO. Such designations shall be made within fifteen (15) business days of receipt of the final deposition transcript. Pending the expiration of the designation period, the entire transcript shall be treated as HCI-AEO to ensure that no inadvertent disclosures occur before designations are finalized.
E. Challenge Procedures
To ensure that confidentiality designations are not overused and do not impede the fair and efficient conduct of the proceeding, we propose the following procedures for challenging designations:
1. Any party may challenge a confidentiality designation by providing written notice to the designating party's counsel of record. The written notice shall identify the specific information or document at issue and state the basis for the challenge (e.g., that the information is publicly available, that the designation is overly broad, or that the information does not warrant the level of protection designated).
2. Within ten (10) business days of receipt of the challenge notice, the designating party shall respond in writing, either (i) withdrawing or modifying the designation, or (ii) providing a written justification for the designation, including a description of the competitive harm that would result from disclosure at a lower level of protection or without any confidentiality protections.
3. If the parties are unable to resolve the dispute within the ten (10) business day period, the challenging party may seek relief from ALJ Whitfield by motion, supported by a memorandum setting forth the basis for the challenge. The designating party shall have the burden of demonstrating, by a preponderance of the evidence, that the challenged designation is warranted.
4. Pending resolution of any challenge, the challenged information shall continue to be treated in accordance with its existing designation.
F. Use Limitations
We propose that all protected information, whether designated as Confidential Information or HCI-AEO, be subject to the following use limitations:
1. Protected information shall be used solely for purposes of the FERC proceeding in Docket Nos. RP22-847-000 and RP22-847-001, including preparation of testimony, briefing, argument, settlement discussions, and any rehearing or judicial review proceedings arising therefrom.
2. No person who receives access to protected information shall use or disclose such information for any commercial, competitive, or business purpose unrelated to the proceeding.
3. No person who receives access to protected information shall disclose such information to any person who is not authorized to receive it under the terms of the protective order.
We wish to emphasize that these use restrictions are particularly important in this proceeding given the direct competitive relationship between Ridgeline and ATPC in the Appalachian Basin natural gas transportation market. Both companies compete for shipper commitments and throughput in overlapping geographic markets, and both companies are actively engaged in expansion and development projects that are influenced by the cost, capacity, and pricing information that will be exchanged in this proceeding. Rigorous use limitations are essential to ensure that the information exchange necessary for the fair adjudication of the cost allocation dispute does not inadvertently provide either party with a competitive advantage in the commercial marketplace.
G. Filing Under Seal
The parties will inevitably need to file documents and testimony containing protected information with the Commission. We propose the following procedures for handling such filings:
1. Any party filing a document with FERC that contains or incorporates Confidential Information or HCI-AEO shall file the document under seal in accordance with the procedures set forth in 18 C.F.R. § 388.112 and any applicable orders of ALJ Whitfield.
2. Simultaneously with any sealed filing, the filing party shall file a redacted public version of the document from which all protected information has been removed or obscured.
3. All sealed filings shall be accompanied by a cover letter or certification identifying the filing as containing information protected under the protective order and specifying the tier of protection applicable to the sealed material.
We note that FERC's established policies on the privileged and confidential treatment of documents provide a well-developed framework for the handling of such filings, and we propose that the protective order incorporate and be consistent with those policies.
H. Return or Destruction of Materials
We propose that within sixty (60) days after the conclusion of the proceeding—including any proceedings on rehearing before the Commission and any judicial review before a United States Court of Appeals or the Supreme Court of the United States—all protected information in the possession of any receiving party shall be returned to the producing party or destroyed. Upon destruction, counsel for the receiving party shall provide a written certification to the producing party's counsel confirming the destruction of all copies of the protected information in the receiving party's possession, custody, or control.
Notwithstanding the foregoing, we propose that outside counsel of record be permitted to retain one (1) archival copy of the protected information in their firm's files for the sole purpose of establishing a record of the proceedings and complying with any professional or regulatory obligations. Any such archival copy shall remain subject to the continuing confidentiality obligations of the protective order for the duration of the survival period described in Section IV.I below.
I. Survival. We propose that the obligations of the protective order survive the termination of the proceeding, including any rehearing or judicial review, for a period of three (3) years following the date of final, non-appealable resolution of the proceeding. During this survival period, all persons who received access to protected information shall continue to be bound by the confidentiality, use, and non-disclosure obligations of the protective order.
Upon the expiration of the three-year survival period, the obligations of the protective order shall terminate automatically, unless the designating party files a motion with the Commission, prior to expiration, seeking an extension of the survival period. Any such motion shall set forth the specific reasons why an extension is warranted and the additional period of protection sought.
J. Remedies for Breach
We propose the following provisions to address any unauthorized disclosure or misuse of protected information:
1. Immediate notification. In the event that any person becomes aware of any unauthorized disclosure or misuse of protected information, the person and the counsel for the party with whom the person is associated shall immediately notify the counsel for the designating party and ALJ Whitfield of the unauthorized disclosure. The notification shall describe the circumstances of the disclosure, identify the information disclosed and the person(s) to whom it was disclosed, and describe the steps taken or proposed to be taken to mitigate the effects of the unauthorized disclosure.
2. Injunctive relief and sanctions. Any party whose protected information has been the subject of an unauthorized disclosure or misuse shall have the right to seek injunctive relief, sanctions, or any other remedies available under the Commission's Rules of Practice and Procedure, 18 C.F.R. Part 385, including but not limited to an order compelling the return or destruction of improperly disclosed information, an order restricting the offending party's access to additional protected information, and any other sanctions that ALJ Whitfield or the Commission deems appropriate.
3. Reservation of additional remedies. Nothing in the protective order shall be construed to limit or waive any party's right to pursue any additional remedies at law or in equity that may be available, including claims for damages arising from breach of the protective order's confidentiality obligations.
V. Non-Disclosure Agreements for Experts and Consultants
As noted above, we propose that each expert witness, consultant, or other third party who is granted access to protected information under the protective order be required to execute an individual Non-Disclosure Agreement ("NDA") prior to receiving any such access. A form of NDA is attached to the enclosed draft Protective Order as Exhibit B.
The proposed NDA would require each individual to: (i) acknowledge that he or she has read and understands the terms of the protective order; (ii) agree to be bound by all obligations of the protective order applicable to the tier(s) of information to which the individual is granted access; (iii) consent to the jurisdiction of the Commission for purposes of enforcement of the protective order and the NDA; and (iv) agree not to use or disclose protected information except as expressly authorized by the protective order.
This requirement is particularly relevant to the following individuals who have already been retained or are expected to be retained in connection with the proceeding:
• Dr. Raymond Braswell of Braswell Energy Consulting Group LLC, who has been retained by Ridgeline as its consultant on tariff redesign and cost allocation issues and who will need access to both Confidential Information and HCI-AEO in preparing and supporting testimony;
• Dr. Eleanor Vasquez, who has been retained by the Mountainside Gas Producers Coalition ("MGPC") as its rate expert and who will likewise require access to protected information from multiple parties; and
• Any experts, consultants, or advisors that ATPC, CMGA, or other parties may retain in connection with the proceeding.
We request that your firm confirm, upon retention of any expert or consultant on behalf of ATPC, the identity of such individuals so that appropriate NDAs can be executed in a timely manner and discovery can proceed without interruption.
VI. Proposed Timeline and Next Steps
In light of the procedural schedule established by the Commission and the prehearing conference set for November 14, 2022, we propose the following timeline for finalizing the protective order:
1. We request that Kellner, Royce & Dillard LLP review the proposed protective order terms set forth in this letter and the enclosed draft Protective Order (Exhibit A) and provide any comments, objections, or counterproposal within fifteen (15) business days of the date of this letter, i.e., by approximately October 17, 2022.
2. Following receipt of KRD's comments, we propose that the parties exchange any additional rounds of comments or revisions as may be necessary, with the goal of reaching agreement on a joint proposed protective order no later than November 1, 2022.
3. We propose that the parties aim to file the joint proposed protective order with ALJ Whitfield in advance of or at the prehearing conference on November 14, 2022, so that the order can be entered and discovery can commence without delay following the conference.
4. With KRD's concurrence, we are prepared to circulate the proposed terms to Whitmore & Sable LLP (counsel for MGPC), Fordham Municipal Law Group PC (counsel for CMGA), and FERC Trial Staff (Jonathan Briggs, Lead Trial Attorney) for their review and potential joinder in the proposed protective order. We believe that early circulation will facilitate the prompt adoption of a unified protective order applicable to all parties.
5. We further propose that Settlement Judge Howard Margolis be informed of the terms of the protective order in connection with the settlement conference process, to the extent that protected information may be exchanged or discussed in the context of any settlement discussions.
We are available to schedule a telephone conference at your convenience to discuss the proposed terms in further detail. Please do not hesitate to contact me directly at (202) 555-4138 or by email at bcallahan@calderwoodharkness.com, or to contact George Trujillo at (202) 555-4112, to arrange a call.
VII. Enclosed Draft Protective Order and Form of NDA
Enclosed with this letter please find the following documents:
• Exhibit A: Draft Protective Order — a proposed form of protective order for filing with ALJ Whitfield, incorporating the terms described in this letter. The draft protective order is formatted for filing as a joint submission by the parties and includes signature lines for counsel of record for each party and intervenor.
• Exhibit B: Form of Non-Disclosure Agreement for Experts and Consultants — a proposed form of NDA to be executed by each expert, consultant, or third party prior to receiving access to protected information under the protective order.
These documents are initial drafts and are intended as a starting point for discussion. Calderwood & Harkness LLP welcomes KRD's input, and we are fully prepared to consider and incorporate reasonable modifications and additions that will address ATPC's confidentiality concerns and facilitate the efficient conduct of the proceeding.
Closing
We hope that the parties can reach prompt agreement on protective order terms so as to facilitate efficient discovery and the timely preparation of testimony in accordance with the Track II procedural schedule established by the Commission. Calderwood & Harkness LLP is committed to protecting the legitimate confidentiality interests of all parties to this proceeding while ensuring that the proceeding can move forward expeditiously and in a manner that enables the full and fair adjudication of the cost allocation issues before ALJ Whitfield.
Ridgeline Midstream Services LLC and Dunmore Energy Holdings Ltd. expressly reserve all rights, claims, and defenses in this proceeding, and nothing in this letter or in the proposed protective order shall be construed as a waiver, limitation, or concession with respect to any position, argument, or claim that Ridgeline or Dunmore Energy Holdings may assert in Docket Nos. RP22-847-000 or RP22-847-001 or in any other proceeding.
We look forward to your response and to working with your firm to finalize the protective order in advance of the November 14 prehearing conference.
Very truly yours,
CALDERWOOD & HARKNESS LLP
________________________________________
Brett Callahan Lead Associate, Energy & Infrastructure
cc: (via email)
George Trujillo, Esq., Calderwood & Harkness LLP (Responsible Partner)
Patricia Dunmore, Esq., Calderwood & Harkness LLP (Billing Partner) / Dunmore Energy Holdings Ltd. (Chairperson)
David Stanton, Esq., Calderwood & Harkness LLP
James K. Winfield, Chief Executive Officer, Ridgeline Midstream Services LLC
Dr. Natasha Orlov, Director of Rates & Regulatory, Ridgeline Midstream Services LLC
Enclosures:
Enclosure 1: Draft Protective Order (Exhibit A)
Enclosure 2: Form of Non-Disclosure Agreement for Experts and Consultants (Exhibit B)