IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

IN RE: FICO ANTITRUST LITIGATION 

RELATED CASES No. 1:20-CV-02114 

This document relates to: 

ALL ACTIONS 

Judge Edmond E. Chang 

Magistrate Judge David E. Weisman 

AGREED CONFIDENTIALITY ORDER

The parties1

 to this Agreed Confidentiality Order have agreed to the terms of this Order; 

accordingly, it is ORDERED: 

1. Scope. All materials produced or adduced in the course of discovery, including 

initial disclosures, responses to discovery requests, deposition testimony and exhibits, and 

information derived directly therefrom (hereinafter collectively “documents”), shall be subject to 

this Agreed Confidentiality Order, as defined below. This Order is subject to the Local Rules of 

this District and the Federal Rules of Civil Procedure (“FRCP”) on matters of procedure and 

calculation of time periods. 

2. Confidential Information. As used in this Order, “Confidential Information” means 

information designated as “CONFIDENTIAL” by the producing party, that falls within one or 

more of the following categories: (a) information prohibited from disclosure by statute; 

(b) research, technical, or commercial information that the party has maintained as confidential; 

(c) personally identifying information; (d) personal or financial information that the party has 

1

 For purposes of this Order, “parties” shall mean the named parties in the above-referenced litigation. In 

addition, any non-party that produces discovery pursuant to a subpoena or other process issued in this 

litigation shall have the rights and protections set forth in this Order. 

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maintained as confidential; or (e) other information the producing party reasonably believes is 

subject to protection. These categories are expressly provided for illustrative purposes only, and 

are not intended to be and should not be construed as exhaustive of the types of information that 

may be appropriately designated as “Confidential Information.” The parties will make reasonable 

efforts to ensure that information or documents that are available to the public are not designated 

as Confidential Information. 

3. Highly Confidential Information. As used in this Order, “Highly Confidential 

Information” means information designated as “HIGHLY CONFIDENTIAL – OUTSIDE 

ATTORNEYS’ EYES ONLY” by the producing party that is of a highly sensitive nature the 

disclosure of which could result in significant harm, including but not limited to competitive harm, 

to the business or operations of that party or non-party or to an individual. By way of example 

only, Highly Confidential Information may include but is not limited to: (a) documents or 

information relating to or reflecting nonpublic business or market strategies and research and 

development activities; (b) documents or information relating to or reflecting other trade secrets 

or nonpublic proprietary business information that bestows a competitive advantage on the 

producing party; (c) documents or information relating to or reflecting revenue, profit, costs or 

pricing; (d) documents or information reflecting customer details that could be used to subject the 

party to a competitive disadvantage; (e) copyrighted software and information reflecting computer 

or programming code and associated comments and revision histories, formulas, engineering 

specifications, or schematics that define or otherwise describe in detail the algorithms or structure 

of software or hardware designs; or (f ) other information the disclosure of which would, in the 

good faith judgment of the designating party, create a risk of serious harm. The parties will make 

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reasonable efforts to ensure that information or documents that are available to the public are not 

designated as Highly Confidential Information. 

4. Designation. 

(a) A party may designate a document as Confidential Information or Highly 

Confidential Information for protection under this Order by placing or affixing the words 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” 

on the document and on all copies in a manner that will not interfere with the legibility of the 

document. 

(b) To the extent a document is produced in a form in which placing or affixing the 

words “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES 

ONLY” on the document is not feasible, the producing party may designate the document as 

confidential by inserting a slip sheet, by affixing a label to the production media containing the 

document, by including the designation in the file title, or, if necessary, by including such 

designation in a cover letter. As used in this Order, “copies” includes electronic images, 

duplicates, extracts, summaries, or descriptions that contain either Confidential Information or 

Highly Confidential Information. The marking “CONFIDENTIAL” or “HIGHLY 

CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” shall be applied prior to or at the 

time the documents are produced or disclosed. Applying the marking “CONFIDENTIAL” or 

“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” to a document does not 

mean that the document has any status or protection by statute or otherwise except to the extent 

and for the purposes of this Order. Any copies that are made of any documents marked 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” 

shall also be so marked, except that indices, electronic databases, or lists of documents that do not 

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contain substantial portions or images of the text of marked documents and do not otherwise 

disclose the substance of the Confidential Information or Highly Confidential Information are not 

required to be marked. 

(c) Upward Designation of Information or Items Produced by Other Parties or NonParties. Subject to the definitions set forth in Paragraphs 2 and 3, a party may upward designate 

(i.e., change a document produced without a designation to a designation of Confidential 

Information or Highly Confidential Information or designate a document produced as Confidential 

Information to a designation of Highly Confidential Information) any document produced by 

another party or non-party, provided that said document contains the upward designating party’s 

own information it believes is Confidential Information or Highly Confidential Information. 

Upward designation shall be accomplished by providing written notice to all parties identifying 

(by Bates number or other individually identifiable information) the document to be re-designated 

upwardly. Any party may object to the upward designation of any document pursuant to the 

procedures set forth in Paragraph 11 regarding challenging designations. 

5. Depositions. 

(a) A party or non-party may designate some or all of a witness’s deposition testimony 

as Confidential or Highly Confidential Information for protection under this Order by orally 

designating the relevant testimony as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 

OUTSIDE ATTORNEYS’ EYES ONLY” on the record at the time the testimony is taken. 

Inadvertent failure to do so does not operate as a waiver. The designating party must provide the 

specific page and line designations over which the party or non-party claims confidentiality within 

thirty (30) days after delivery of the final transcript by the court reporter to the designating party 

or non-party. Deposition testimony shall be treated as “CONFIDENTIAL” or “HIGHLY 

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CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” as orally designated, prior to the 

deadline. Thereafter, only those portions identified in the Notice of Designation shall remain 

protected under the terms of this Order. 

(b) In the event information designated as Confidential or Highly Confidential 

Information is to be shown to a witness at deposition, hearing, trial or otherwise, the witness shall 

be provided with a copy of this Order at the start of the examination, and the witness must comply 

with the terms of this Order. Except as provided herein, if the witness has refused to execute 

Attachment A as required by this Order, the party taking the deposition will read the text of 

Attachment A on the record, which shall serve as a substitute for the execution of Attachment A 

and shall permit examination of the witness on documents or other materials containing 

Confidential Information or Highly Confidential Information. 

6. Protection of Confidential Information or Highly Confidential Information. 

(a) General Protections. Except as set forth below, Confidential Information or Highly 

Confidential Information shall not be used or disclosed by the parties, counsel for the parties, or 

any other persons identified in Paragraph 6(b) for any purpose whatsoever other than prosecuting, 

defending, or settling this litigation, including any appeal thereof. Confidential Information or 

Highly Confidential Information may be disclosed only to the named plaintiff(s) and not to any 

other member of the putative class except under circumstances permitting such disclosure set forth 

in Paragraphs 6(b) and 7. 

(b) Limited Disclosures of Confidential Information. The parties and counsel for the 

parties shall not disclose or permit the disclosure of any Confidential Information to any person or 

entity except as set forth in subparagraphs 6(b)(1)-(12). Subject to these requirements, the 

following categories of persons may be allowed to review Confidential Information: 

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(1) Counsel. Outside or in-house counsel for the parties and employees or support staff 

of such counsel (including but not limited to attorneys, paralegals, information technology, 

litigation support, secretaries, law clerks, and investigators) who have responsibility for the 

preparation and trial of the action; 

(2) Parties. Individual parties and employees of the parties, but only to the extent 

counsel determines in good faith that disclosure is reasonably necessary to the conduct of the 

litigation and the person has been advised of their obligations hereunder; 

(3) Court. The Court and its personnel; 

(4) Court Reporters and Video Recorders. Court reporters and video recorders engaged 

for depositions, but only after such persons have completed the certification contained in 

Attachment A; 

(5) Contractors. Those persons specifically engaged for the purpose of providing 

litigation support, including computerized or electronic discovery support, providing photocopies, 

organizing or processing documents, including outside vendors hired to collect, process, or host 

electronically stored documents, but only after such persons have completed the certification 

contained in Attachment A; 

(6) Consultants and Experts. Consultants, investigators, or experts or support staff of 

such consultants, investigators, or experts retained by the parties or Counsel for the parties to assist 

in the preparation and trial of this action, but only after such consultants, investigators, experts, or 

support staff have completed the certification contained in Attachment A. This definition includes 

professional jury or trial consultants retained in connection with this litigation; 

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(7) Witnesses at Trial. Any witness at trial during the pendency of that trial, to whom 

counsel believes, in good faith, that such disclosure is reasonably necessary for the prosecution or 

defense of these proceedings and who has completed the certification contained in Attachment A; 

(8) Witnesses at Depositions. During their depositions, witnesses in this action (and 

their counsel) if the witness has completed the certification contained in Attachment A, and to 

whom disclosure is limited to documents that (1) were produced by the witness’s employer and 

created during the period of the witness’s employment, (2) show on their face that the witness2

authored or received them, (3) memorialize that the witness was privy to the document’s contents 

(e.g., a document refers to a meeting attended by the witness), or (4) are reasonably necessary to 

be shown to the witness according to the good faith judgment of counsel. Neither witnesses nor 

their counsel shall retain a copy of any exhibit designated as Confidential Information, except 

witnesses and their counsel may receive copies of all exhibits marked at their depositions in 

connection with review of the deposition transcript. After the conclusion of the litigation such 

witnesses and their counsel shall destroy those copies; 

(9) Author or Recipient. Persons whom the Confidential material itself indicates, or 

the receiving party otherwise has a good-faith basis to believe, were the author, creator, producer, 

addressee, source, or recipient of a document (not including a person who received the document 

in the course of this action) may be shown only those documents that he or she authored or 

received; and any person whose statements, communications or actions are expressly mentioned, 

discussed, or referred to by actual name in the material as indicated on its face may be shown that 

2

 For purposes of this paragraph, a witness designated to testify on behalf of an organization taken 

pursuant to FRCP 30(b)(6) may be deemed to have “author[ed]” or “received” a document designated by 

that organization as Confidential so long as at least one employee of the organization authored or received 

the document. 

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portion of the document referring to them and such other portions as necessary to provide context 

for the reference to that person; 

(10) Special Masters. Special masters and their direct staff; 

(11) Mediators. Mediators and their direct staff, provided that they are bound by a 

confidentiality agreement acceptable to all parties; and 

(12) Others by Consent. Other persons only by written consent of the producing party 

or upon order of the Court and on such conditions as may be agreed or ordered. 

(c) Disclosures of Highly Confidential Information. The parties and counsel for the 

parties shall not disclose or permit the disclosure of any Highly Confidential Information to any 

person or entity except as set forth in subparagraphs 6(c)(1)-(10). Subject to these requirements, 

the following categories of persons may be allowed to review Highly Confidential Information: 

(1) Outside Counsel. Outside counsel for the parties who have appeared in this action 

and employees or support staff of such counsel (including but not limited to attorneys, paralegals, 

secretaries, law clerks, and investigators), provided that such individuals do not regularly 

participate in the commercial business activities of the receiving party; 

(2) Court. The Court and its personnel; 

(3) Court Reporters and Video Recorders. Court reporters and video recorders engaged 

for depositions, but only after such persons have completed the certification contained in 

Attachment A; 

(4) Contractors. Those persons specifically engaged for the purpose of providing 

litigation support, including computerized or electronic discovery support, providing photocopies, 

organizing or processing documents, including outside vendors hired to collect, process, or host 

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electronically stored documents, but only after such persons have completed the certification 

contained in Attachment A; 

(5) Consultants and Experts. Consultants, investigators, or experts employed by the 

parties or Counsel for the parties to assist in the preparation and trial of this action or support staff 

of such consultants, investigators, or experts, so long as any such consultants, investigator, experts 

or support staff are not employees or regular contractors of the parties or any affiliated entity, but 

only after such consultants, investigators, experts, or support staff have completed the certification 

contained in Attachment A. This definition includes professional jury or trial consultants retained 

in connection with this litigation; 

(6) Witnesses at Depositions. During their depositions, witnesses in this action to 

whom disclosure is limited to documents that (1) were produced by the witness’s employer and 

created during the period of their employment, (2) show on their face that the witness3 authored or 

received them, or (3) memorialize that the witness was privy to the document’s contents (e.g., a 

document refers to a meeting attended by the witness). Neither witnesses nor their counsel shall 

retain a copy of any exhibit designated as Highly Confidential Information, except witnesses and 

their counsel may receive copies of all exhibits marked at their depositions in connection with 

review of the deposition transcript. After the conclusion of the litigation witnesses and their 

counsel shall destroy those copies; 

(7) Author or Recipient. Persons whom the Highly Confidential material itself 

indicates, or the receiving party otherwise has a good-faith basis to believe, were the author, 

creator, producer, addressee, source, or recipient of a document (not including a person who 

3

 For purposes of this paragraph, a witness designated to testify on behalf of an organization taken 

pursuant to FRCP 30(b)(6) may be deemed to have “author[ed]” or “received” a document designated by 

that organization as Highly Confidential Information so long as at least one employee of the organization 

authored or received the document. 

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received the document in the course of this action) may be shown only those documents that he or 

she authored or received; and any person whose statements, communications or actions are 

expressly mentioned, discussed, or referred to by actual name in the material as indicated on its 

face may be shown that portion of the document referring to them and such other portions as 

necessary to provide context for the reference to that person; 

(8) Special Masters. Special masters and their direct staff; 

(9) Mediators. Mediators and their direct staff, provided that they are bound by a 

confidentiality agreement acceptable to all parties; and 

(10) Others by Consent. Other persons only by written consent of the producing party 

or upon order of the Court and on such conditions as may be agreed or ordered. 

(d) To the extent any person is required to complete the certification contained in 

Attachment A to this Order, facsimile signatures or signatures transferred in electronic format (e.g., 

PDF) shall be treated as original signatures purposes of this Order. 

(e) Control of Documents. Counsel for the parties shall make reasonable efforts to 

prevent unauthorized or inadvertent disclosure of Confidential Information or Highly Confidential 

Information. 

(f) Acknowledgment of Understanding and Agreement To Be Bound (Attachment A). 

To the extent that this Order requires any persons to acknowledge their obligations under this 

Order, that acknowledgment shall be accomplished by the execution of the Acknowledgment of 

Understanding and Agreement To Be Bound (Attachment A). The counsel for the party that 

obtains such signed agreements shall maintain the originals of those forms for a period of one year 

after the termination of the case, including any appeal(s) thereof. 

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7. Failure To Designate. A failure to designate a document or testimony as 

Confidential Information or Highly Confidential Information does not, standing alone, waive the 

right to so designate the document or testimony. If a party designates a document as Confidential 

Information or Highly Confidential Information after it was initially produced, the receiving party, 

on notification of the designation, must make a reasonable effort to ensure that the document is 

treated in accordance with the provisions of this Order. No party shall be found to have violated 

this Order for failing to maintain the confidentiality of material during a time when that material 

has not been designated Confidential Information or Highly Confidential Information, even where 

the failure to so designate was inadvertent and where the material is subsequently designated 

Confidential Information or Highly Confidential Information. 

8. Inadvertent Disclosure of Attorney-Client Privileged or Work-Product Protected 

Documents and Clawback Procedures. Pursuant to Federal Rule of Evidence 502(d) and (e), if, in 

connection with the action, information subject to a claim of attorney-client privilege, attorney 

work-product protection, or other evidentiary privilege or protection (“Protected Documents”) is 

inadvertently disclosed, the disclosure does not constitute a waiver or forfeiture of such privilege 

or protection with respect to the privileged information or its subject matter, in this litigation or in 

any other federal or state proceeding. Instead, the producing party shall be entitled to assert such 

privilege or protection, except as further discussed below, and the information and its subject 

matter shall be treated as if there has been no such disclosure. 

(a) Upon discovering the disclosure of information that the producing party 

believes in good faith to be covered by attorney-client privilege, work-product protection, 

or other evidentiary privilege or protection, the producing party shall promptly provide 

written notification to the receiving party identifying the documents or portions thereof that 

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contain privileged or protected information, in accordance with the requirements of FRCP 

26(b)(5)(A). 

(b) Upon written notice of the production of a Protected Document by the 

producing party or oral notice if such notice is delivered on the record at a deposition, the 

receiving party must within seven (7) days, return, sequester, or destroy the specified 

document and any electronic or hard copies the receiving party has, and may not further 

use or disclose the Protected Document until the claim that it is a Protected Document has 

been resolved. The receiving party may retain and sequester a copy of the document 

asserted to be privileged or protected for the purpose of resolving a dispute with the 

producing party as to whether the document is privileged or protected from disclosure, and 

the receiving party need not remove from the record any document that has been previously 

introduced until such dispute is resolved. If the receiving party agrees that the document 

is privileged, it will promptly confirm in writing to the producing party that it has either 

returned or destroyed all versions of the document and will make no use of the information. 

Promptly following notification by the receiving party, the producing party shall provide 

the receiving party with a replacement production in the same format as the original 

production, with the protected information appropriately withheld or redacted. If the 

receiving party disputes that material noticed pursuant to this paragraph is privileged or 

protected from disclosure, then the retention and sequester of such material shall be 

governed by Paragraph 8(f ). 

(c) Where a producing party seeks to invoke its rights to claw back a document 

under Federal Rule of Evidence 502(d) and this Order with respect to a document that has 

been submitted to the Court as an exhibit or used as an exhibit in a deposition, the producing 

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party must do so within fourteen (14) days of the document being so filed or used. To the 

extent that the information contained in a document submitted to the Court as an exhibit or 

used as an exhibit in a deposition is subject to a claim that it contains privileged or protected 

information, then the receiving party will not further use such document(s) until the claim 

has been resolved. However, while the receiving party need not remove from the record 

any document that has been previously introduced until such dispute is resolved, the 

producing party may notify the Court and/or court reporting service that a dispute under 

this paragraph is pending and ask that the document(s) be sequestered and made not 

accessible to the public or parties until the dispute is resolved. To the extent a producing 

party does not seek to invoke its rights under Federal Rule of Evidence 502(d) and this 

Order to claw back a document that has been submitted to the Court as an exhibit or used 

as an exhibit in a deposition within fourteen (14) days of the document being so filed or 

used, the parties agree that Federal Rule of Evidence 502(d) will not apply to such filed or 

used document. However a party may seek to invoke its rights under Federal Rule of 

Evidence 502(b) to claw back such filed or used document. 

(d) If the receiving party has disclosed the specified document before being 

notified of its inadvertent production, it must take reasonable steps to retrieve it. 

(e) The producing party shall provide an updated privilege log as called for in 

Section VIII of the Stipulation and Order Establishing the Protocol for the Production of 

Documents and Electronically Stored Information, as well as any portion of the document 

that does not contain privileged or protected information. 

(f) The receiving party may challenge the assertion of any privilege discussed 

in this paragraph. Any challenge that cannot be resolved by the parties will be filed with 

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the court presiding over this litigation in the Northern District of Illinois and subject to the 

law in that District. It shall be the receiving party’s responsibility to initiate Court 

proceedings, if any. The receiving party may not, however, publicly assert as a ground for 

such motion the fact or circumstances of the production or reveal the substance of the 

protected contents of the materials (including in contesting the assertion of protection or 

privilege). Any motion contesting the privilege or work-product claim shall be submitted 

to the Court in camera for review or, if the Court directs, filed under seal. Pending 

resolution of such a challenge, the receiving party must continue to sequester the 

information contained in any notes and, in the event the Court concludes that the 

information is protected from disclosure, delete the information from any notes or any 

portions thereof that reveal the substance of the privileged or protected information. The 

producing party must preserve the information pending resolution of the challenge and, in 

the event the Court concludes that the information is not protected from disclosure, 

promptly provide the receiving party with a replacement production. 

(g) The producing party may challenge the receiving party’s use of any 

Protected Document. Any challenge that cannot be resolved by the parties will be filed 

with the court presiding over this litigation in the Northern District of Illinois and will be 

subject to the laws of that District. In all instances in which the producing party asserts a 

privilege or protection, the producing party must preserve a copy of the document asserted 

to be privileged or protected until the claim of privilege is resolved. 

(h) The obligation of the receiving party to return or to destroy materials under 

this Order does not apply to multi-case disaster recovery databases maintained by the 

receiving party. If these disaster recovery databases are accessed or restored, however, 

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then any Protected Documents on those databases relating to this action shall be destroyed 

if destruction is required elsewhere in this Order. 

(i) If a party independently discovers that it has received documents or 

information that reasonably appear to be privileged, the party shall timely notify the other 

party, and in any event, no later than ten (10) days after such discovery. 

(j) Except as otherwise set forth in Paragraph 8(c), where a document has been 

submitted to the Court as an exhibit or used as an exhibit in a deposition and no party has 

sought to claw back such document within fourteen (14) days of the document being so 

filed or used, this Order shall be interpreted to provide the maximum protection allowed 

by Federal Rule of Evidence 502(d) and (e), and Federal Rule of Evidence 502(b) shall not 

otherwise apply. Nothing contained herein is intended to or shall limit a party’s right to 

conduct a pre-production review of hard-copy documents, electronically stored 

information (“ESI”) or any other information (including metadata) for relevance, 

responsiveness, privilege and/or protection, and nothing herein is intended to curtail a 

party’s right to challenge any documents, ESI or any other information withheld based on 

a claim of relevance, responsiveness, privilege and/or protection. 

(k) Nothing in Paragraph 8 shall limit the right of any party to petition the Court 

for an in camera review of inadvertently disclosed Protected Documents. 

9. Filing of Confidential Information or Highly Confidential Information. This Order 

does not, by itself, authorize the filing of any document under seal. Any party wishing to file a 

document designated as Confidential Information or Highly Confidential Information in 

connection with a motion, brief or other submission to the Court must comply with LR 26.2 of the 

District Court for the Northern District of Illinois. 

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10. No Greater Protection of Specific Documents. Except on privilege grounds not 

addressed by this Order, no party may withhold information from discovery on the ground that it 

requires protection greater than that afforded by this Order unless the party moves for an order 

providing such special protection or the parties otherwise agree. 

11. Challenges by a Party to Designation as Confidential Information or Highly 

Confidential Information. The designation of any material or document as Confidential 

Information or Highly Confidential Information is subject to challenge by any party. A party does 

not waive its right to challenge a designation by electing not to mount a challenge promptly after 

the original designation is disclosed. The following procedure shall apply to any such challenge. 

(a) Meet and Confer. A party challenging the designation of Confidential Information 

or Highly Confidential Information must do so in good faith and must begin the process by 

conferring directly with counsel for the designating party. In conferring, the challenging party 

must identify in writing by Bates number or privilege log identifying number the material 

challenged and explain the basis for its belief that the designation was not proper. The designating 

party or nonparty must respond to the challenge within ten (10) business days. If agreement is 

reached confirming, changing or waiving the designation as to any material subject to the 

objection, the designating party or nonparty shall serve on all parties a notice specifying the 

document and the nature of the agreement. If the designation is changed or waived, the designating 

party or nonparty shall also produce copies of all materials with the amended, agreed-upon 

designation at the expense of the designating party or nonparty. 

(b) Judicial Intervention. A party that elects to challenge a confidentiality designation 

may file and serve a motion that identifies the challenged material and sets forth in detail the basis 

for the challenge. The burden of persuasion in any such challenge proceeding shall be on the 

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designating party or nonparty. Until the Court rules on the challenge, all parties shall continue to 

treat the materials as Confidential Information or Highly Confidential Information under the terms 

of this Order. 

12. Challenges to Privilege Claims. Following its receipt of a privilege/redaction log 

produced in this action, a party may identify, in writing (by Bates/unique identifying number), the 

particular documents that it believes require further explanation. The producing party shall 

endeavor to respond to such a request within ten (10) business days. If a party challenges a request 

for further information, the parties shall meet and confer to try to reach a mutually agreeable 

solution. If they cannot agree, the matter may be brought to the Court. 

13. Action by the Court. Nothing in this Order or any action or agreement of a party 

under this Order limits the Court’s power to make orders concerning the disclosure of documents 

produced in discovery or at trial. 

14. Use of Confidential Information or Highly Confidential Information at Motion 

Hearings. Except as expressly set forth herein, nothing in this Order shall be construed to affect 

the use of Confidential Information or Highly Confidential Information in connection with any 

presentation of evidence and argument at hearings or trial. The parties will confer with each other 

and, as necessary, any affected non-party reasonably in advance of a hearing where Confidential 

Information or Highly Confidential Information will be discussed so that a designating party may 

request procedures it deems necessary to protect against the disclosure of proprietary or 

competitively sensitive information, including whether, or to what extent, the Court should restrict 

public attendance at the hearing. The Court may make such orders as are necessary to govern the 

use of Confidential Information or Highly Confidential Information at a hearing. 

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15. Use of Confidential Information or Highly Confidential Information at Trial. The 

use of Confidential Information or Highly Confidential Information at any trial in this matter will 

be addressed by a separate stipulation or pretrial order of the Court. 

16. Third Parties. In seeking discovery from third parties, the parties shall attach this 

Order to a copy of any subpoena or other discovery request. Third parties from whom discovery 

is requested are entitled to the protections of this Order in responding to such requests. 

17. Confidential Information or Highly Confidential Information Subpoenaed or 

Ordered Produced in Other Litigation: 

(a) If a receiving party is served with a discovery request, subpoena, civil investigative 

demand, grand jury subpoena, or an order issued in other litigation that would compel disclosure 

of any material or document designated in this action as Confidential Information or Highly 

Confidential Information, the receiving party must so notify the designating party, in writing, 

immediately and in no event more than five (5) business days after receiving the subpoena or order. 

Such notification must include a copy of the subpoena or court order. 

(b) The receiving party also must immediately inform in writing the party who caused 

the subpoena or order to issue in the other litigation that some or all of the material covered by the 

subpoena or order is the subject of this Order. In addition, the receiving party must deliver a copy 

of this Order promptly to the party in the other action that caused the subpoena to issue. 

(c) The purpose of imposing these duties is to alert the interested persons to the 

existence of this Order, and to afford the designating party in this case an opportunity to try to 

protect its Confidential Information or Highly Confidential Information in the court from which 

the subpoena or order issued. If the designating party or nonparty timely seeks a protective order, 

the receiving party served with the request shall not produce any information designated in this 

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action as “Confidential Information” or “Highly Confidential Information” before a determination 

by the court from which the request issued, unless the receiving party has obtained the designating 

party’s permission. The receiving party shall cooperate with respect to all reasonable procedures 

sought to be pursued by the designating party or nonparty whose designated material may be 

affected. The designating party or nonparty shall bear the burden and the expense of seeking 

protection in that court of its Confidential Information or Highly Confidential Information, and 

nothing in these provisions should be construed as authorizing or encouraging a receiving party in 

this action to disobey a lawful directive from another court. The obligations set forth in this 

paragraph remain in effect while the party has in its possession, custody, or control Confidential 

Information or Highly Confidential Information produced by another party or nonparty to this case. 

18. Challenges by Members of the Public to Sealing Orders. A member of the public 

may have a right to challenge the sealing of particular documents that have been filed under seal, 

and the party asserting confidentiality will have the burden of demonstrating the propriety of filing 

under seal. 

19. Unauthorized Disclosure or Use. If a party learns that it or its counsel, officers, 

directors, employees, consultants, experts or other agents have disclosed documents designated as 

Confidential Information or Highly Confidential Information in any circumstance not authorized 

under this Order, that party must within two (2) business days of learning of such disclosure 

(a) notify the designating party of the disclosure and all pertinent facts relating thereto, (b) make 

every reasonable effort to prevent disclosure by each unauthorized person who received such 

information, (c) use reasonable best efforts to retrieve all copies of the protected documents 

disclosed to unauthorized persons, (d) inform the person or persons to whom unauthorized 

disclosures were made of the terms of this Order, and (e) request that each such person execute the 

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certification contained in Attachment A. Nothing contained herein shall limit the right of the 

designating party to seek relief against the party responsible for such disclosure. 

20. Obligations on Conclusion of Litigation. 

(a) Order Continues in Force. Unless otherwise agreed or ordered, this Order 

shall remain in force after dismissal or entry of final judgment not subject to further appeal. 

(b) Obligations at Conclusion of Litigation. Within sixty (60) days after 

dismissal or entry of final judgment not subject to further appeal, all Confidential 

Information and Highly Confidential Information marked either as “CONFIDENTIAL” or 

“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” under this 

Order, including copies as defined in Paragraph 4(b), shall be returned to the producing 

party or destroyed to the extent practicable unless it has been offered into evidence or filed 

without restriction as to disclosure. Within sixty-five (65) days after the final termination 

of this action, including any appeals, counsel for the receiving party shall certify in writing 

to the producing party that all such Confidential Information and Highly Confidential 

Information has been destroyed. 

(c) Retention of Work Product and Filed Documents. Notwithstanding the 

above requirements to return or destroy documents, outside or in-house counsel for the 

parties may retain archival copies of all pleadings, motion papers, transcripts, drafts or final 

expert reports, legal memoranda, correspondence, and all attorney work product, even if 

such materials contain Confidential Information or Highly Confidential Information. Any 

retained Confidential Information or Highly Confidential Information shall continue to be 

protected under this Order and subject to the restrictions on third-party disclosures set forth 

in Paragraph 6. An attorney may use his or her work product in subsequent litigation, 

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provided that its use does not disclose Confidential Information or Highly Confidential 

Information. Nothing in this Order shall be construed to require the destruction or return 

of Confidential Information or Highly Confidential Information stored in counsels’ 

archives, back-up media, or disaster recovery media. 

(d) Deletion of Documents Filed Under Seal from Electronic Case Filing (ECF) 

System. Filings under seal shall be deleted from the ECF system only upon order of the 

Court. 

21. Order Subject to Modification. This Order shall be subject to modification by the 

Court on its own initiative or on motion of a party or any other person with standing concerning 

the subject matter. 

22. No Prior Judicial Determination. This Order is entered based on the representations 

and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall 

be construed or presented as a judicial determination that any document or material designated 

Confidential Information or Highly Confidential Information by counsel or the parties is entitled 

to protection under FRCP 26(c) or otherwise until such time as the Court may rule on a specific 

document or issue. 

23. Persons Bound. This Order shall take effect when entered and shall be binding 

upon all counsel of record and their law firms, the parties, and persons made subject to this Order 

by its terms. 

24. Future Parties. The terms of this Order shall be binding upon all current and future 

parties to this litigation and their counsel; any party appearing in the litigation following entry of 

this Order shall be deemed to have joined the case subject to its provisions. 

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25. Computing Time. For deadlines and time periods that are stated in this Order as a 

number of “days,” time shall be computed in accordance with FRCP 6(a)(1). For deadlines and 

time periods that are stated in this Order as a number of “business days,” time shall be computed 

in accordance with FRCP 6(a)(1) except that Saturdays, Sundays, and legal holidays shall not be 

counted. 

SO ORDERED.

Dated: 11/16/2023 ______________________________ 

Edmond E. Chang 

U.S. District Court Judge 

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ATTACHMENT A 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

IN RE: FICO ANTITRUST LITIGATION 

RELATED CASES No. 1:20-CV-02114 

This document relates to: 

ALL ACTIONS 

Judge Edmond E. Chang 

Magistrate Judge David E. Weisman 

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he/she/they has read the Confidentiality Order 

dated ___________________ in the above-captioned action and attached hereto, understands the 

terms thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction of 

the United States District Court for the Northern District of Illinois in matters relating to the 

Confidentiality Order and understands that the terms of the Confidentiality Order obligate 

him/her/them to use materials designated as Confidential Information or Highly Confidential 

Information, in accordance with the Order solely for the purposes of the above-captioned action, 

and not to disclose any such Confidential Information or Highly Confidential Information to any 

other person, firm, or concern. 

 

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The undersigned acknowledges that violation of the Confidentiality Order may result in 

penalties for contempt of court. 

Name: __________________________________ 

Job Title: ________________________________ 

Employer: _______________________________ 

Business Address: _______________________________ 

 _______________________________ 

 _______________________________ 

 _______________________________ 

Dated: ___________ _____________________________ 

 Signature 

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