No. 80-448 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH 

COMPANY, et al., 

Plaintiff and Appellant, 

MOUNTAIN STATES LEGAL FOUNDATION, et al., 

Intervenors and Appellants, 

VS. 

THE DEPARTMENT OF PUBLIC SERVICE REGULATION, 

THE PUBLIC SERVICE COMMISSION OF THE STATE OF MONTANA, 

et al., 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial Distrct, 

In and for the County of Lewis and Clark. 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

J. Walter Hyer argued, Helena, Montana 

Hughes, Bennett, Kellner and Sullivan, Helena, Montana 

For Intervenors: 

Maxwell Miller and R. Norman Cramer, argued, Denver, 

Colorado 

For Respondents: 

Eileen E. Shore, argued, P.S.C., Helena, Montana 

James Payne, Helena, Montana 

John C. Allen argued, Montana Consumer Counsel, Helena, 

Montana 

Roger Tippy, Helena, Montana 

Alan Joscelyn, Helena, Montana 

John R. Kline, Helena, Montana 

Filed: 

Submitted: June 9, 1981 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This appeal arises out of the denial by the District 

Court, First Judicial District, Lewis and Clark County, of 

a petition for declaratory judgment by Mountain States 

Telephone and Telegraph Company (Mountain Bell) that the 

Public Service Commission (PSC) issue a protective order 

preserving the confidentiality of certain trade secrets 

claimed by Mountain Bell to be a valuable property right. 

Mountain Bell is a public utility incorporated in 

Colorado, offering regulated telephone services, and other 

services in the State of Montana. The Public Service Commission 

is the arm of state government charged with the duty of 

regulating public utilities. The Montana Consumer Counsel 

(MCC), working with the Consumer Committee (both provided 

for in Title 5, Ch. 15, MCA) is given the statutory authority 

to appear at public hearings conducted by the PSC as the 

representative of the consuming public in all matters which 

in any way affect the consuming public. Section 69-2-201, MCA. 

Mountain Bell filed an application for a rate increase 

for its regulated services before the PSC. MCC and the 

other defendants-respondents appeared before the PSC in 

opposition to the application for increases. During the 

course of discovery, MCC served upon Mountain Bell certain 

data requests. Mountain Bell filed objections to the data 

requests contending that the requested information consisted of 

trade secretq\and proprietary and confidential business 

information. Mountain Bell offered to make the information 

available to the commission and the MCC subject to the commission's entry of a proposed protective order. 
The PSC denied Mountain Bell's motion for a protective 

order on the grounds that a corporation is not entitled to 

the protection of the individual privacy exception under 

1972 Mont. Const., Art. 11, § 9, and that parties of record 

should be able to examine any and all documents in a rate 

increase proceeding before the PSC. 

After final denial by the PSC of the motion for a 

protective order, Mountain Bell filed an action for judicial 

review and declaratory relief in the District Court. The 

facts were stipulated to for the purpose of submitting pure 

legal issues to the District Court for summary judgment. 

Leave to intervene was granted the plaintiff-intervenors who 

also join as appellants in this cause. 

Mountain Bell and intervenors filed motions for summary 

judgment. The District Court denied the motions for summary 

judgment, and ordered that general judgment be entered in 

the cause for all the defendants. From this summary disposition 

of the cause appeal was duly perfected. 

Mountain Bell states the issue presented to us for 

review in this paragraph: 

"Whether certain identified provisions of Montana 

Constitutional and statutory law, which mandate 

public disclosure and dissemination of regulated 

utility trade secret property whenever such 

information is necessary to a rate determination 

of the Public Service Commission, are in fatal 

contravention to other Montana Constitutional 

guarantees and the protections and guarantees 

of the Fifth and Fourteenth Amendments to and the 

equal protection and interstate commerce clauses 

of the United States Constitution." 

On July 9, 1981, we issued an interlocutory order in 

this cause, in effect requiring the issuance of a protective 

order regarding Mountain Bell's trade secret property. A 

copy of that interlocutory order is attached hereto. We 

undertake in this opinion to explain the reasons for our 
interlocutory order, and to issue a declaratory judgment in 

favor of Mountain Bell. 

There is no doubt raised by any party to these proceedings that the trade secret information is essential to the 

PSC to make a determination on Mountain Bell's application 

for revenue increases, and that Mountain Bell relies on the 

trade secret information in support of its application for 

revenue increases. The dispute centers solely around Mountain 

Bell's contention that in submitting the information requested 

upon discovery, it is entitled to a protective order preserving 

the confidentiality of the trade secret information from 

Mountain Bell's unregulated competitors. 

Mountain Bell contends that the trade secret information 

is property which should be protected against compelled 

public disclosure to competitors, and asserts five grounds 

why certain Montana statutes and provisions of the 1972 

Montana Constitution are unconstitutional., facially and as 

applied. The intervenors assert unconstitutionality under 

the Fourth and Fifth Amendments of the United States Constitution. 

We refer first to the state constitutional section and 

the statutes which Mountain Bell contends are unconstitutional 

on their face and as applied here. The 1972 Mont. Const., 

Art. 11, 5 9 (the citizen's "right to know"), provides the 

right in all persons to examine documents or to observe the 

deliberations of all public bodies "except in cases in which 

the demand of individual privacy clearly exceeds the merits 

of public disclosure." Section 69-3-105, MCA (the citizen's 

right to inspect), makes all records in the possession of 

the PSC open to the public at reasonable times subject to 

withholding only in the interest of the public for a period 
not exceeding 90 days. Section 2-6-102, MCA (the citizen's 

right to inspect and copy records), opens the records of all 

public bodies in this state to inspection and copying, except 

as otherwise provided by statute, and gives any citizen the 

right to a certified copy of any such document upon payment 

of legal fees. 

Basically, the principal legal reason given by the PSC 

for its denial of a protective order was that Mountain Bell 

was not entitled to the individual privacy provided for in 

the exception clause of the,1972 Mont. Const., Art._II, § 9. 

The PSC concluded that the constitutional section did not 

guarantee individual privacy to corporations. The District 

Court examined in detail the order of the PSC, and outlined 

for itself the issues to be decided by it in this cause in 

the following fashion: 

"While we agree with the Commission's principle, 

we cannot agree that the principle strips a 

private corporation of all rights to protect its 

trade secrets in Montana. The provisions of a 

constitution, as well as a statute, must be read 

together and effect must be given to all of them, 

insofar as possible. While the privacy interest 

of the corporation may not be placed in the balance 

in considering the public's 'right to know' guaranteed 

by Article 11, Section 9 of our constitution, the 

right of the corporation to due process of law before 

being deprived of its property (Article 11, 

Section 17), the right of the corporation to 

compensation in the event it is deprived of 

its property for a public purpose (Article 11, 

Section 29), possibly its right to remain secure 

against unreasonable searches and seizures (Article 

11, Section 11) and even the right to enforce its 

unenumerated rights (Article 11, Section 34) are 

not necessarily abrogated by its lack of entitlement 

under the 'right to know' provision. Nor, of course, 

are any rights guaranteed corporations by the 

U.S. Constitution. To protect any or all of these 

rights, the Public Service Commission might, in a 

proper case, issue a protective order despite the 

corporation's exclusion from protection under Art. 

1 Section 9.shTU"f:$ section is therefore not facially 

defective, nor/& e held decisive in this case on the 

question of whether the plaintiff is entitled to 

a protective order. 
"If the plaintiff is not necessarily excluded from 

entitlement to a protective order by Article 11, 

Section 9, the next question is whether it is entitled, 

contrary to the specific statutes of Montana (inter 

alia MCA Sections 69-2-203(2), 69-3-104, 69-3-105, 

2-6-102 and 2-6-104), to a protective order in this 

particular proceeding before the Public Service 

Commission. In relation to that question, part 

of the second legal reason given by the Public Service 

Commission is most pertinent and compelling: 'Parties 

of record in this proceeding should be able to examine 

any and all documents upon which the Commission will 

base its decision and upon which Applicant relies in 

filing its request for increased revenues ***Iu 

District Court Opinion and Order, dated October 2, 

1980. 

The first task facing the District Court, and now facing 

us, is whether a trade secret of the kind involved here is 

property subject to constitutional protections. The District 

Court concluded it was. The District Court then further 

concluded, in effect, that because Mountain Bell is a public 

utility, subject to regulation, when it applied to the PSC 

for an increase of its revenues for its regulated services, 

Mountain Bell was required to divulge to the PSC and to the 

public all pertinent information upon which its application 

for rate increases was based and that such compelled disclosure 

did not violate any state or federal constitutional rights 

of Mountain Bell. 

As we examine the constitutional problems brought up in 

this appeal, it becomes obvious to us that if the denial of 

a protective order has the effect of violating any one of 

Mountain Bell's constitutional rights as contended in this 

action, then such protective order ought to be granted if by 

so granting, the unconstitutional effect is obviated. 

We have concluded that we agree with the District Court 

that trade secret information of the kind involved here is a 

species of property that is entitled to constitutional 

protection; but we have further concluded that the provisions 
of our state constitution and statutes, when applied to deny 

the protective order in this case, have the effeet of violating, 

as applied, the equal protection clause of the Fourteenth 

Amendment of the federal constitution, and the due process 

clauses of the state and federal constitutions. We leave 

for decision to some other case and time whether the remaining 

constitutional arguments of Mountain Bell have validity. 

TRADE SECRETS AS PROPERTY 

We are given no record here as to what it is we have 

categorized as "trade secret"; that is, whether it is an 

idea, design, system or implement, or combination of these. 

The respondents make no point of this, conceding, and we 

accept their concession, that some process resulting from 

Mountain Bell's research and development gives Mountain Bell 

a competitive edge as to the communications services it 

offers. This however, leads respondents to the argument 

that disclosure of the trade secret does not necessarily 

deprive Mountain Bell of the use of its trade secret. 

Regardless of dislosure, say the respondents, Mountain Bell 

still has the use of its trade secret available and that 

disclosure therefore does not take away from Mountain Bell 

any property of value. On that basis, respondents claim 

that the trade secret as such is not entitled to constitutional 

protection. 

The intervenors point out that the respondents have not 

appealed from the finding of the District Court that trade 

secrets are protectable property. However, a determination 

that a trade secret is protectable property is --- sine qua non 

to our decision and in any event, is a matter which we must 

consider under Rule 14, M.R.App.Civ.P. 

To be short about it, we agree with the District Court, 

which pointed out that the Ninth Circuit case of Tri-Tron 
Intern. v. Velto (9th Cir. 1975), 525 F.2d 432, upheld the 

decision of the Montana Federal ~istrict Court recognizing 

as a compensable tort the deprivation of a trade secret 

through a breach of faith. Also, the Montana Rules of Civil 

Procedure recognize trade secrets as protectable. Rule 26, 

(C) (7), M.R.C~V.P. The District Court concluded: 

"To insist in the face of all this that Montana, 

or any other state, should eschew recognition 

of a trade secret as property would be to insist 

on a legal fabrication unsullied by reality." 

District Court Opinion and Order, dated October 

2, 1980. 

It is obvious to us that a trade secret which is used 

in one's business, and which gives one an opportunity to 

obtain an advantage over competitors who do not know or use 

it, is private property which could be rendered valueless or 

of less value to its owner if disclosure of the information 

to the public and to one's competitors were compelled. 

Surely, if an individual owned a trade secret and sought 

protection against compelled disclosure, we would hold such 

private property protectable under the exception in 1972 Mont. 

Const., Art. 11, § 9, ("cases in which the demand of individual 

privacy clearly.exceeds the merits of public disclosure"), 

to the extent necessary under the circumstances. Whether a 

corporate owner of a trade secret is entitled to the same 

exception we will discuss below. 

COMPELLED DISCLOSURE AND DUE PROCESS 

It is conceded that there is constitutional and statutory 

authority for compelled disclosure of trade secret information 

to the PSC and the Consumer Counsel. Indeed, Mountain Bell 

offers to disclose such information to those agencies, 

subject to the issuance of a protective order. 

The Consumer Counsel is a constitutional agency having 

the duty of representing consumer interests in hearings 

before the PSC. 1372 Mont. Const., Art. XIII, § 2. 
By statute, the Consumer Counsel has all the investigatory 

powers necessary to perform its duties and it may examine 

under oath in any PSC proceedings any employee of a regulated 

company and the business and corporate records of such a 

company in accordance with the law and in the exercise of 

its duties. Section 69-2-203, MCA. Since it is conceded by 

Mountain Bell that its application before the PSC for increased 

revenues is based in part upon its trade secret process, it 

is obvious that the Consumer Counsel, in the exercise of its 

duties, has a full statutory right to the disclosure by 

Mountain Bell of its trade secret information. 

The PSC is vested with "full power of supervision, 

regulation, and control of . . . public utilities." Section 

69-3-102, MCA. It has authority to inquire into the management of the business of all public utilities, keeping itself 

informed as to the method in which the same is conducted. 

It has the right to obtain from any public utility all 

necessary information to enable the PSC to perform its 

duties. Section 69-3-106, MCA. The PSC has jurisdiction to 

set rates to be charged by public utilities for their regulated 

services. Sections 69-3-301 and 69-3-302, MCA. 

The compelled disclosure, therefore, of a trade secret 

owned by a public utility, where such information is necessary 

to the proper exercise of the duties of the PSC or the 

Consumer Counsel is not a "taking" or a deprivation under 

either the state or federal due process clauses. U.S. Const., 

Amend. V; 1372 Mont. Const., Art. 11, S 17. (See, Great 

Northern Utilities Co. v. Public Service Comrn'n. (1930), 88 

Mont. 180, 293 P. 294, for a discussion of the constitutionality 

of the power of the PSC to regulate utility rates.) 

The constitutional rub lies, as Mountain Bell contends, 

in the compelled disclosure of the information to all of the 
public--including Mountain Bell's nonregulated competitors-- 

beyond the state agencies. The District Court and the PSC 

concluded that such compelled disclosure was required under 

the right to know and right to inspect constitutional and 

statutory provisions of Montana. 

As we have noted, section 69-3-105, MCA,provides that 

records of every nature in the possession of the PSC are 

open to the public at reasonable times, except for a minor 

provision that the PSC might withhold the information for 

not more than 90 days. Section 2-6-102, MCA, gives every 

citizen a right to inspect and get copies of any public 

writings. The term "public writings" would include all 

documents filed with the PSC. Section 2-6-101(2), MCA. 

Most importantly, the District Court and the PSC applied the 

1972 Mont. Const., Art. 11, 5 9--the constitutional "right 

to know" provision--so as to compel disclosure to any citizen 

of all information in regulatory proceedings. 

This is a classic case for the application of the 

"means end test" wherein the power of the state to interpose 

its authority on behalf of the public is balanced against 

the constitutional requirement of due process in the protection, 

in this case, of private property. Lawton v. Steele (1894), 

152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385. Courts are not 

required to follow one extreme or the other of colliding 

constitutional rights; judicial protection of the confidentiality 

of the trade secret information is proper where both the 

needs of the public and the protection of private property 

can equally be served. - See, F.C.C. v. Schreiber (1965), 381 

U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383. We find it possible 

to protect fully the ownership of the trade secret information 

and at the same time, supply fully the need of the state 
agencies for the information required in the exercise of 

their duties. We find that an order can be fashioned in 

such manner that the state public agencies can perform their 

duties with the fullest available information and at the 

same time disclose to the public all information required to 

enable citizens to determine the propriety of governmental 

actions affecting them. As the court stated in Pennzoil Co. 

v. Federal Power Commission (5th Cir. 1976), 534 F.2d 627: 

"Implicit in Schreiber is the proposition 

that the balancinq of the public and private 

interests might compel secrecy, 381 u,S. at 

296, 85 S.Ct. 1459. Therefore, in reviewing 

this case we must likewise determine whether 

the Commission abused its discretion in 

balancing the public and private interests." 

534 F.2d at 631. 

Here, neither the District Court nor the PSC balanced 

the competing public and private interests presented in this 

case. Rather, they determined that if the data was necessary 

for the determination by the PSC, that fact alone made it 

necessary to disclose all of the information to all of the 

parties, including persons not necessarily interested in the 

ratemaking process. Such a construction may lead in this 

case to the destruction of a property right based on material- - 

- ity rather than on a consideration of whether full public 

disclosure is based upon a reasonable and rational means to 

achieve the purpose inherent in the right to know provision. 

Moore v. City of East Cleveland, Ohio (1977), 431 U.S. 494, 

97 S.Ct. 1932, 52 L.Ed.2d 531; Nectow v. City of aambridge 

(1928), 277 U.S. 183, 48 S.Ct. 417, 72 L.Ed. 842; Tyson & 

Bro.--Unitied Theatre Ticket Offices v. Baton (1927), 273 U.S. 

418, 47 S.Ct. 426, 71 L.Ed. 718; Norfolk & W. Ry. Co. v. Public 

Service Commission (1924), 265 U.S. 70, 44 S.Ct. 439, 68 L.Ed. 

904; Jay Burns Baking Co. v. Bryan (1924), 264 U.S. 504, 44 

S.Ct. 412, 68 L.Ed. 813; Adams v. Tanner (1917), 244 U.S. 590, 
We have therefore issued a directive for a protective 

order in this case. In it is the result of the balancing 

process that we have described above. The order gives the 

PSC full access to all information needed by it in its 

regulatory duties with the right in the commission to preserve 

that information in its offices. Likewise, we have provided 

that the Consumer Counsel may receive such information and 

preserve the same in its office. We have made the same 

information available to any party, corporate or private, 

participating in the rate hearings before the PSC, subject 

to provisions which protect the confidentiality of the trade 

secret information. We are confident that such provisions 

provide consumers with adequate knowledge to participate 

fully in the commission's proceedings while at the same time 

protecting the interests of the utility. See Pennzoil 

- Co., 534 F.2d at 632. 

DUE PROCESS-FOURTEENTH AMENDMENT-EOUAL PROTECTION 

The PSC held in its order denying a protective order on 

April 30, 1979 (and upheld its ruling on a motion for reconsideration) that "Mountain States Telephone and Telegraph 

Company is not to be considered an individual under Article 

11, Section 9, of the Montana Constitution." 

The commission ruling took Mountain Bell out of the 

exception, contained in Mont. Const., Art. 11, 5 9, which 

states that the "right to know" does not apply "in cases in 

which the demand of individual privacy clearly exceeds the 

merits of public disclosure." 

The District Court, sitting in review of the PSC order 

declined to follow the PSC's rationale as to whether Mountain 

Bell was entitled to the benefit of the exception. Instead 

the District Court determined that the PSC would have applied 
the "right to know" provision even-handedly, both to individuals 

and to corporations, and that therefore, the PSC would not 

have made any distinction between individuals and corporations 

as classes. The District Court concluded therefore that no 

equal protection question was presented to it by the ruling. 

The District Court appears to base its denial of a 

protective order upon the premise that it is constitutionally 

permissible for the state in the exercise of a lawful governmental function, to regulate utility rates, and for its 

citizens to know how the state regulates such rates by full 

access to the information before the regulators. 

We incline to agree with the District Court that the 

PSC would probably have applied equally the "right to know" 

constitutional provision and required disclosure whether it 

had before it an individual or a corporation. Nevertheless, 

we put this possible corporate classification to rest, as an 

unequal application of the right to know provision, by 

stating that the demands of individual privacy of a corporation 

as well as of a person might clearly exceed the merits of 

public disclosure, and thus come within the exception of the 

right to know provision. 

We are reinforced in this conclusion by Mont. Const., 

Art. 11, 5 10, which states: "The right of individual 

privacy is essential to the well-being of a free society and 

shall not be infringed without the showing of a compelling 

state interest." 

Showing a compelling state interest is an equal protection 

test, and it comes into play if the statute or state constitution affects a fundamental right. Schilb v. Kuebel 

(1971), 404 U.S. 357, 365, 92 S.Ct. 479, 484, 30 L.Ed.2d 

502, 511, reh. den. 405 U.S. 948, 92 S.Ct. 930, 30 ~.Ed.2d 818. 
Since we have determined that a trade secret is a 

species of private property, the right to hold that property 

is a fundamental right. If the PSC were to be upheld in its 

ruling that the 197.2 Mont. Const., Art,. TI, S 9, covers individuals 

but not corporations, it would be necessary that we find a 

compelling state interest for such classification to avoid 

the implications of the equal protection clause of the 

Fourteenth Amendment. We find no such compelling state 

interest. A corporation is a "person" within the due process 

and equal protection clauses of the Fourteenth Amendment to 

the U.S. Constitution. First Nat. Bank of Boston v. Bellotti 

(1978), 435 U.S. 765, 780, 98 S.Ct.1407, 1418, 55 L.Ed.2d 707, 720, 

reh. den. 438 U.S. 907, 98 S.Ct. 3126, 57 L.Ed.2d 1150. 

Even, however, if we were to agree with the District 

Court that no pernicious classification by the PSC is involved 

in this case because of its even-handed application of the 

right to know provision, we cannot escape the implications 

of the Fourteenth Amendment under our finding that a due 

process violation occurred in the refusal of the protective 

order. The Fourteenth Amendment does far more than extend 

equal protection in the application of state law. It also 

provides that no state "shall . . . dgprive any person of 

life, liberty, or property, without due process of law.. . ." 

Our state constitution also guarantees due process, 1972 

Mont. Const., Art. 11, 5 17, and equal protection of the 

laws, Mont. Const., Art. 11, 5 4. The application by the 

PSC of Montana's right to know provision in this instance 

created a conflict of that provision with the due process 

and equal protection clauses of the state constitution. 

It is not difficult to resolve the conflict if we keep 

in mind the federal constitutional provisions. The due 
process clauses of the Fifth and Fourteenth Amendments of 

the U.S. Constitution also conflict with Montana's right to 

know provision as applied here by the PSC. It is appropriate 

that state rules respecting due process principles be in 

harmony with federal rules on the same subject, in the same 

area. Matter of M.D.Y.R. (1978), 177 Mont. 521, 532, 582 

P.2d 758, 765. By holding that the due process clause of 

the Fourteenth Amendment and the due process clause of the 

Fifth Amendment require us to provide protection to Mountain 

Bell for its trade secrets to the extent not necessary for 

regulation, we confirm the police power of the state to 

regulate utilities, we resolve the seeming internal conflict 

in our state constitution created by the PSC in the application 

of the right to know provision, and we pay due accord to the 

due process requirements of the U.S. Constitution. 

INFORMATIONAL RIGHTS OF THE PSC AND THE CONSUMER COUNSEL 

It should be noted that in our protective order, we 

have placed no fetters upon the rights of the PSC and the 

Consumer Counsel to obtain from Mountain Bell all information, 

including trade secret data, upon which its application for 

increased revenues is based. The police power of this state 

in the regulation of public utilities is sufficient basis to 

justify the unhampered rights of these state agencies to 

receive such information. We have confirmed the rights of 

these agencies to hold the information in their office 

files. Any party to the ratemaking process shall have access 

to the trade secret information to be used by their expert 

witnesses in the ratemaking determination. Further dissemination 

of the information we leave to the discretion of the PSC, to 

be released, or not released, in the exercise by the PSC of 

its ratemaking functions. We have thus balanced the rights 
that all citizens acquired under the right to know provision 

of the state constitution with the purpose and function for 

which our laws compel disclosure by utilities of trade 

secrets. The right to know provision was designed to prevent 

the elevation of a state czar or oligarchy; it was not 

designed for, nor will we substitute, the tyranny of a 

proletariat. 

By our holding here we have declared that the PSC and 

utilities appearing before it are not presented a Hobson's 

choice. The utility can hold and enjoy its private property 

to the extent not necessary to be divulged in the ratemaking 

process. The Consumer Counsel, representing the consuming 

public, has full access to the necessary information. Any 

other citizen, under our order, may also have access to the 

trade secret, provided his or her interest relates to the 

ratemaking function of the PSC. 

The judgment of the District Court is reversed. This 

opinion shall be a declaratory judgment on the rights of the 

parties. We retain jurisdiction of this proceedings as 

recited in the attached order. No costs to any party. 

Justice 

We Concur: 
District Judge, Sitting / For the Hon. Daniel J. 

Shea 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 80-448 

THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH 

COMPANY, a Colorado Corporation, 

Plaintiff and Appellant, 

MOUNTAIN STATES LEGAL FOUNDATION, 

NORTHWEST MINING ASSOCIATION, MONTANA 

CHAMBER OF COMMERCE, 

Intervenors and Appellants, 

VS. 

THE DEPARTMENT OF PUBLIC SERVICE REGULATION, 

et al., 

Defendants and Respondents. 

ORDER 

PER CURIAM: 

This is an appeal from a judgment for the defendantsrespondents entered in the First Judicial ~istrict Court, 

Lewis and Clark County, on December 3, 1980. 

Briefs have been received and oral argument by all 

parties had before this Court on June 9, 1981, and the 

matter thereupon taken under advisement. 

The Court has concluded that plaintiff-appellants 

are entitled to protective relief; however, the constitutional 

issues raised in the cause are complex, require extended 

discussion, and the court's opinion will not be issued for 

at least thirty days. 

In the interest of expediting the proceedings before 

the Public Service Commission which underlie the declaratory 

action in the District Court, the Court deems it appropriate 

to issue this interlocutory order pending issuance of its 

final opinion; 
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 

1. The judgment entered in favor of the defendants on 

December 3, 1980, in cause no. 43992 in the District Court 

of the First Judicial District, in and for the County of 

Lewis and Clark be and the same is hereby reversed, vacated 

and set aside. 

2. The said District Court is hereby required and ordered 

to enter judgment in favor of the plaintiffs-appellants in 

said District Court. Said judgment shall include an order 

directed to the Department of Public Service Regulation, the 

Public Service Commission of the State of Montana, directing 

that the said Public Service Commission shall make and enter 

in the underlying proceedings before it the following order: 

"ORDER 

"THE COMMISSION ORDERS THAT: 

"1. All documents, data, information, 

studies and other matters furnished pursuant 

to any interrogatories or requests for information, 

subpoenas, depositions, or other modes of 

discovery that are claimed to be trade secret, 

privileged or confidential nature shall be 

furnished pursuant to the terms of this Order, 

and shall be treated by all persons accorded 

access thereto pursuant to this Order as 

constituting trade secret, confidential or 

privileged commercial and financial information 

(hereinafter referred to as 'Confidential 

Information'), and shall neither be used nor 

disclosed except for the purpose of this 

proceeding, and solely in accordance with this 

Order. 

"2. All Confidential Information made available 

pursuant to this Order shall be given solely 

to counsel for the parties, and shall not be 

used or disclosed except for purposes of this 

proceeding; provided, however, that access to 

any specific Confidential Information may be 

authorized by said counsel, solely for the 

purpose of this proceeding, to those persons 

indicated by the parties as being their 

experts in this matter. Any such expert may 

not be an officer, director or employee (except 

legal counsel) of the parties, or an officer, 

director, employee or stockholder or member of 

an association or corporation of which any party 
is a member, subsidiary or affiliate. Any member 

of the Public Service Commission, and any member 

of its staff, the Consumer Counsel, and any member of 

his staff may have access to any Confidential 

Information made available pursuant to this 

Order. 

"3. Prior to giving access to Confidential 

Information as contemplated in paragraph 2 

above to any expert, counsel for the party seeking 

review of the Confidential Information shall deliver 

a copy of this Order to such person, arid prior 

to disclosure such person shall agree in writing 

to comply with and be bound by this Order; and 

said counsel shall, at the time of the review 

of such information and data, or as soon thereafter as practicable, deliver to counsel for 

the party furnishing said information and data 

a copy of such written agreement (which shall 

show signatory's full name, permanent address, 

and employer) . 

"4. Where feasible, Confidential Information 

will be marked as such and delivered to counsel. 

In the alternative, the Confidential Information 

may be made available for inspection and be 

reviewed by counsel and experts as defined in 

paragraph 2 herein in a place and a time mutually 

agreed on by the parties, or as directed by 

the Public Service Commission. 

"5. In the event that the parties hereto are 

unable to agree that certain documents, data, 

information, studies or other matters constitute 

trade secret, confidential or privileged commercial 

and financial information, the party objecting 

to the trade secret claim shall forthwith submit 

the said matters to the Commission for its review 

pursuant to this Order. When the Commission rules 

on the question of whether any documents, data, 

information, studies or other matters submitted to 

them for review and determination are Confidential 

Information, the Commission will enter an order 

resolving the issue. 

"6. All counsel for the Commission, the staff of the 

Commission and the staff of the Consumer Counsel and 

his attorneys shall be bound by the terms of this 

Order. 

"7. Those parts of any writing, depositions reduced 

to writing, written examination, interrogatories 

and answers thereto, or other written references 

to Confidential Information in the course of 

discovery, if filed with the Commission, will be 

sealed by the Commission, segregated in the files 

of the Commission, and withheld from inspection by 

any person not bound by the terms of this Order, 

unless such Confidential Information is released 

from the restrictions of this Order either through 

agreement of the parties or, after notice to the 

parties and hearing, pursuant to the Order of the 

Commission and/or final order of a Court having 

jurisdiction. 
"All written Confidential Information coming 

into the possession of the Consumer Counsel 

under this order may be retained by him in his 

office files, but shall be withheld from inspection 

by others, except for his staff and his counsel, 

unless released by the Public Service commission 

and/or a final order of a court under this paragraph 

7, and subject always to the terms of paragraph 

8 of this Order. 

"8. All persons who may be entitled to receive, or 

who are afforded access to any Confidential 

Information by reason of this Order shall neither 

use nor disclose the confidential Information for 

purposes of business or competition, or any other 

purpose other than the purposes of preparation 

for and conduct of this proceeding, and then 

solely as contemplated herein, and shall take 

reasonable precautions to keep the confidential 

Information secure and in accordance with the 

purposes and intent of this Order. 

"9. The parties hereto affected by the terms 

of this Protective Order further retain the 

right to question, challenge, and object to the 

admissibility of any and all data, information, 

studies and other matters furnished under the 

terms of this Protective Order in response to 

interrogatories, requests for information or 

cross-examination on the grounds of relevancy 

or materiality. 

"10. This Order shall in no way constitute 

any waiver of the rights of any party herein 

to contest any assertion or finding of trade 

secret, confidentiality or privilege, and to 

appeal any such determination of the Commission 

or such assertion by a party. 

"11. Upon completion of this proceeding, including 

any administrative or judicial review thereof, 

all Confidential Information, whether the 

original or any duplication or copy thereof, 

furnished under the terms of this Protective 

Order, and finally determined to be confidential 

or trade secret, shall be returned to the party 

furnishing such Confidential Information upon 

request. Confidential Information made part of 

the record in this proceeding shall remain in 

the possession of the Commission, and may remain 

in the possession of the Consumer Counsel as above 

provided in paragraph 7. 

"12. The provisions of this Order are specifically 

intended to apply to data or information supplied by 

or from any party to this proceeding, and any nonparty that supplies documents pursuant to process 

issued by this Commission. 

"13. This Order shall be effective forthwith." 
3. If any provision of the foregoing order required to 

be entered by the Public Service Commission shall impede or 

make impossible the performance of the lawful duties of the 

Public Service Commission, or the Montana Consumer Counsel 

in a manner not heretofore argued in this cause, such parties 

are hereby granted express permission to file directly in 

this Court such motions as may be appropriate to amend or 

vacate the offending provisions of said order, and this 

Court retains jurisdiction of the cause for that purpose. 

4. This Court further retains jurisdiction of the 

cause for the purpose of issuing an opinion herein and for 

such further and other relief or judgment as may be appropriate 

in the premises. - 

DATED this &day of July, 1981. 

C,hief Justice ,- 

/' / 

District Judge, Sitting for 

Mr. Justice Daniel J. Shea