PUBLIC

1 

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

Microsoft Corporation, 

a corporation, 

and 

Activision Blizzard, Inc.,

a corporation. 

Docket No. 9412 

RESPONDENTS’ OPPOSITION TO COMPLAINT COUNSEL’S MOTION TO COMPEL 

DISCOVERY RESPONSES FROM RESPONDENTS

Complaint Counsel’s Motion to Compel (“Mot.”) is based on the false premise that 

Respondents have failed to comply with the Court’s October 26 Order reopening discovery. That 

Order authorized “limited discovery on the Ubisoft and Sony Agreements.” October 26 Order at 3

(emphasis added). It did not authorize wide-ranging discovery aimed at reanimating antitrust claims 

rejected by a federal court and further weakened by agreements guaranteeing Sony access to Call of 

Duty and divesting Activision’s cloud streaming rights prior to closing. 

Respondents have already complied with almost all of Complaint Counsel’s broad discovery 

requests. Among other things, Respondents have completed productions in response to Complaint 

Counsel’s request for “[a]ll documents relating to the Ubisoft Agreements” and “[a]ll documents 

relating to the Sony Agreement.” Ex. C to Mot. at 7–11. Respondents have also agreed to produce 

witnesses to testify about dozens of topics and subtopics identified in corporate notices of subpoena, 

Ex. G to Mot. at 3–4, including topics on every conceivable aspect of the Ubisoft and Sony 

Agreements, Ex. D to Mot., Topics 1–4, 6–7, 10–11; Ex. E to Mot., Topics 1–4, 6. Complaint Counsel 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 1 of 23 * -PUBLIC 
PUBLIC

2 

has not raised any issue with these discovery responses, which alone satisfy Respondents’ obligations 

under the Court’s Order. 

Throughout its Motion, Complaint Counsel relies on assertions that the Court has already 

authorized the additional discovery it seeks rather than meaningfully demonstrating the 

appropriateness of that discovery. That failure to demonstrate relevance should always result in a 

denial of discovery. But Respondents respectfully assert that Complaint Counsel had an even greater 

responsibility to demonstrate relevance here—where discovery was reopened for the limited purpose

of targeted, narrowly tailored discovery about the Ubisoft and Sony Agreements. As explained below, 

the discovery sought is not relevant, let alone targeted and narrowly tailored. 

ARGUMENT

I. Complaint Counsel’s Timeliness Argument Is Meritless

The rule cited by Complaint Counsel purportedly requiring Respondents to move to quash the 

deposition notices within 10 days is inapplicable. That rule explicitly applies to “the subject of a 

subpoena.” 16 C.F.R. § 3.34(c). Complaint Counsel did not serve third-party subpoenas ad 

testificandum; it served notices for party depositions. See Ex. D to Mot.; Ex. E to Mot. Such notices 

are governed by a different rule, which allows a party to move for a protective order at any reasonable 

time and does not impose a 10-day time limit. 16 C.F.R. § 3.33(b); see also 16 C.F.R. § 3.31(d). A 

related rule also allows for the filing of a motion to compel to enforce a notice of deposition, 16 C.F.R. 

§ 3.38(a), which is what Complaint Counsel has done here and on other occasions, see, e.g., In re

Jerk, LLC, No. 9361, 2014 WL 4252394, at *1 (F.T.C. Aug. 15, 2014). Tellingly, Complaint Counsel 

has not cited a single case where a party was deemed to have waived its objections to a deposition

notice because it did not move to quash within 10 days. 

Complaint Counsel’s novel timeliness theory would be inefficient and counterproductive, 

requiring a party receiving a deposition notice to move to quash almost immediately, rather than 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 2 of 23 * -PUBLIC 
PUBLIC

3 

allowing parties time to negotiate a resolution and avoid burdening the Court. In this case, 

Respondents served written objections to Complaint Counsel on December 8. See Ex. G to Mot. at 

12–18. Complaint Counsel responded in writing on December 11, see Ex. G to Mot. at 10–12, and 

the parties met and conferred on December 13, see Ex. G to Mot. at 4–5. On December 15, Complaint 

Counsel terminated further negotiations, indicating it would file a motion to compel, see Ex. G to 

Mot. at 1, which it did on December 20, see Mot. Though the parties were regrettably unable to 

resolve all areas of disagreement, the meet and confer process was worthwhile, as it narrowed the 

issues now before the Court. 

Complaint Counsel also cannot claim any prejudice from Respondents’ decision to engage in 

negotiations instead of running directly to Court. The parties have agreed that the noticed depositions 

will occur on January 10 (Activision)1 and 17 (Microsoft), more than a month after Respondents 

served their written objections. See Ex. G to Mot. at 1–2. If Complaint Counsel really believed that 

resolving these issues sooner was imperative, it would not have waited until December 20—12 days 

after Microsoft served its objections and 5 days after Complaint Counsel ended negotiations—to file 

its Motion. Complaint Counsel, in fact, does not attempt to assert that it has been prejudiced in any 

way, making the only conceivable purpose of Complaint Counsel’s timeliness argument to get the 

Court to rule in its favor without addressing texhe merits.

II. Respondents Should Not Be Required To Produce Documents And Provide Testimony 

About The Merger Agreement Extension2 

Complaint Counsel’s request for documents and testimony related to the extension of the 

termination date in the Merger Agreement is based on an incorrect assumption about the purported 

relevance of that discovery. The only basis for relevance Complaint Counsel has ever suggested is 

1

 Activision has offered to move its deposition to a later date if Complaint Counsel would prefer. 

2 This section addresses RFP 5 to Microsoft; RFP 4 to Activision; Microsoft Deposition Topic 8; and 

Activision Deposition Topic 7.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 3 of 23 * -PUBLIC 
PUBLIC

4 

that discovery of the Merger Agreement negotiations is appropriate because Complaint Counsel 

assumes that those negotiations must have referenced the “contours of a potential [cloud divestiture].” 

Mot. at 9. Putting aside that Complaint Counsel has not explained why it should be entitled to all 

communications relating to the Merger Agreement extension based on speculation that some such 

communications may have touched on a potentially relevant topic, that speculation is incorrect. As 

explained in a sworn declaration, discussions about the Merger Agreement extension did not involve 

any discussion of the Ubisoft Agreement or any other potential cloud divestiture. See Declaration of 

Keith Dolliver at ¶ 6, attached hereto as Exhibit 1. 

Even if the Merger Agreement extension negotiations had involved discussions of the Ubisoft 

Agreement, however, those communications would already be captured by other discovery requests 

served by Complaint Counsel, to which Respondents are responding in full. See In re OSF Healthcare 

Sys., No. 9349, 2012 FTC LEXIS 30, at *6 (F.T.C. Feb. 13, 2012) (denying a motion to compel the 

production of documents as “unreasonably cumulative or duplicative,” where the respondents were

already in possession of those documents). Among other things, Respondents have completed 

productions in response to Complaint Counsel’s request for all documents related to the Ubisoft 

Agreement and agreed to produce a witness to testify about the Ubisoft Agreement. See Ex. C to Mot.

at 7–10; Ex. D to Mot., Topics 1–4, 6–7, 10; Ex. E to Mot., Topics 1–4, 6. Complaint Counsel asserts 

that this discovery is insufficient because the documents produced by Respondents do not include any 

communications about the Merger Agreement extension. Mot. at 4. But that is unsurprising because, 

as noted, the Merger Agreement extension negotiations did not include any discussion of a potential 

cloud divestiture. 

Respondents also disagree with Complaint Counsel’s assertion that the Court already resolved 

this issue. Complaint Counsel suggests that Respondents, in their opposition to Complaint Counsel’s 

motion to reopen discovery, somehow conceded that the Merger Agreement extension was relevant. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 4 of 23 * -PUBLIC 
PUBLIC

5 

Not so. Respondents expressly stated in that briefing, as here, that the Merger Agreement extension 

is irrelevant. Resp. Microsoft’s Opp. Compl. Counsel’s Mot. Extend Fact Disc. Allow Disc. re Resps.’ 

Agmt. Ubisoft Ent. SA & Sony Interactive Ent. LLC, at 6 (Oct. 20, 2023) (“Complaint Counsel also 

suggests that it needs discovery into Respondents’ negotiation to extend the deadline for completing 

the transaction, but Complaint Counsel does not even try to explain the relevance of such an 

inquiry.”). 

In any event, the Court, in its October 26 Order reopening discovery, did not mention the 

Merger Agreement extension, nor did it need to do so. The Court “grant[ed] additional time for limited 

discovery on the Ubisoft and Sony Agreements” because, in relevant part, “there [was] no dispute as 

to the relevance of the agreements.” See October 26 Order at 3 (emphasis added). To reopen discovery, 

the Court had no cause to decide whether that relevance also encompassed the Merger Agreement 

extension. Respondents, of course, fully intend to abide by all Court orders, but respectfully maintain 

that this issue has not been resolved, and that the Court should not permit discovery into the Merger 

Agreement extension because it is irrelevant and beyond the scope of Court’s October 26 Order. 

III. Respondents Should Not Be Required To Provide A Witness To Testify About Potential 

Alternative Cloud Divestiture Agreements That Were Never Executed3

The Court’s October 26 Order, in relevant part, permitted Complaint Counsel to take “limited 

discovery on the Ubisoft . . . Agreement[].” See October 26 Order at 3. Respondents have complied 

with that Order, including agreeing to provide a witness to testify about all relevant aspects of the 

Ubisoft Agreement and the impact of its divestiture of Activision’s cloud streaming rights. This 

includes testimony about the terms of the Ubisoft Agreement, the payment scheme under the Ubisoft 

Agreement, any models or analyses about the impact of the Ubisoft Agreement, and communications 

3 This section addresses Microsoft Deposition Topics 2(d) and 5; and Activision Deposition Topics 

2(d) and 5. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 5 of 23 * -PUBLIC 
PUBLIC

6 

with Ubisoft and third parties about the Ubisoft Agreement. Ex. D to Mot., Topics 1–4, 6–7, 10; Ex. 

E to Mot., Topics 1–4, 6; Ex. G to Mot. at 3–4, 12–18. 

Complaint Counsel, however, has improperly sought to expand the scope of discovery to 

include potential acquirers and proposed terms that are not part of the executed Ubisoft Agreement. 

See 16 C.F.R. § 3.31(c)(2)(iii) (providing that requested discovery “shall be limited” when the 

“burden and expense of the proposed discovery . . . outweigh its likely benefit”). Complaint Counsel 

asserts without explanation that this discovery is warranted because it provides “context” for 

understanding the Ubisoft Agreement. Mot. at 7. But Complaint Counsel has not provided a single 

example of a relevant proposed term or communication with a prospective buyer that would provide 

meaningful context. This sort of broad, searching discovery is inconsistent with the Court’s October 

26 Order, which authorized limited discovery on the Ubisoft Agreement. 

Complaint Counsel is also incorrect in suggesting that Respondents’ agreement to produce 

documents in response to RFPs 2(a) (requesting communications with Ubisoft) and 2(b) (requesting 

documents analyzing or discussing alternative purchasers to Ubisoft) means that Respondents have 

conceded the relevance of the proposed deposition topics. Respondents objected to these Requests as 

“overly broad, disproportionate to the needs of this administrative action, and outside the scope of 

the Court’s October 26, 2023 Order,” but (as a compromise) agreed to produce all documents 

responsive to these requests “[s]ubject to and without waiving the foregoing objections.” Ex. C to 

Mot. at 9–10. Respondents should not be penalized for seeking to work productively with Complaint 

Counsel. To the contrary, Complaint Counsel’s failure to identify a single relevant document in 

Respondents’ productions confirms that additional discovery on these topics via deposition is 

unnecessary and would be unreasonably cumulative and duplicative, cf. In re N. Texas Specialty 

Physicians, No. 9312, 2004 FTC LEXIS 12, at *4 (F.T.C. Jan. 21, 2004) (denying a motion to compel 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 6 of 23 * -PUBLIC 
PUBLIC

7 

interrogatory responses where “the burden of deriving or ascertaining the answers from the 

documents produced [was] substantially the same” for the requesting party). 

IV. Activision Should Not Be Compelled To Provide Corporate Testimony In Response To 

Several Deposition Topics Identical To Those Served On Microsoft4 

The Court should reject Complaint Counsel’s request to compel Activision to provide 

corporate testimony on Activision Topics 1 (terms of Ubisoft Agreement), 3 (payment provisions of 

Ubisoft Agreement), 4 (analysis of Ubisoft Agreement’s impact), and 7 (plans to license Activision 

content for cloud streaming) for three independent reasons. 

First, Complaint Counsel inappropriately seeks duplicative testimony from Microsoft and 

Activision. 16 C.F.R. § 3.31(c)(2)(i) (providing that requested discovery “shall be limited” when the 

discovery sought is “unreasonably cumulative or duplicative”). Activision Topics 1, 3, 4, and 7 are 

identical to Microsoft Topics 1, 3, 4, and 8. Compare Ex. D to Mot., Topics 1, 3, 4, 8 with Ex. E to 

Mot., Topics 1, 3, 4, 7. Microsoft has already agreed to produce a witness to testify about each of 

these topics, and Complaint Counsel has made no serious attempt to justify the need for duplicative 

testimony. Instead, Complaint Counsel relies on the Court’s October 26 Order. Mot. at 6–7. But that 

Order only authorized Complaint Counsel to serve corporate deposition notices on both Microsoft 

and Activision; it did not authorize Complaint Counsel to serve duplicative notices with identical

topics. 

Second, Activision does not have knowledge of the information sought by Complaint 

Counsel. Courts routinely decline to require organizations to provide corporate testimony regarding 

information about which they are “not (and ha[ve] no reason to be) knowledgeable.” See Mitchell v. 

Atkins, 2019 WL 6251044, at *2 (W.D. Wash. Nov. 22, 2019); accord In re Body Sci. LLC Pat. 

Litig., 2014 WL 12644298, at *1 (D. Mass. Oct. 31, 2014); In re Ski Train Fire of Nov. 11, 2000 

4 This section addresses Activision Deposition Topics 1, 3, 4, and 7. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 7 of 23 * -PUBLIC 
PUBLIC

8 

Kaprun Austria, 2006 WL 1328259, at *9 (S.D.N.Y. May 16, 2006). Microsoft, not Activision, led 

the negotiations with Ubisoft, and Activision has no insight into how Microsoft determined the 

payment provisions of the Ubisoft Agreement. Schnakenberg Decl. ¶ 5-6, attached hereto as Exhibit 

2; Ex. E to Mot., Topics 1 and 3. Activision did not model or otherwise assess the “impact or potential 

impact of the Ubisoft Agreements.” Id. ¶ 7; Ex. E to Mot., Topic 4. And Activision is unaware of 

any “Plans or potential Plans” to license Activision’s content for cloud gaming. Id. ¶ 9; Ex. E to Mot., 

Topic 7. 

Third, Complaint Counsel did not properly meet and confer with Activision’s counsel on this 

issue. See 16 C.F.R. § 3.21(a). To the best of Activision’s counsel’s recollection, Complaint Counsel 

never raised any concern with Activision’s decision not to designate an Activision witness for these 

topics, York Decl. ¶ 6, attached hereto as Exhibit 3, nor did Complaint Counsel ever indicate that it 

would move to compel on this issue, id. ¶ 7. Had the parties properly exhausted this issue, Activision 

could have explained its lack of knowledge on Activision Topics 1, 3, 4, and 7, potentially avoiding 

the need for the Court to resolve this issue. 

CONCLUSION

For the foregoing reasons, the Motion to Compel should be denied. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 8 of 23 * -PUBLIC 
PUBLIC

9 

Dated: January 2, 2024 Respectfully submitted,

By: /s/ Steven C. Sunshine By: /s/ Beth Wilkinson

Steven C. Sunshine 

Julia K. York

Jessica R. Watters

Skadden, Arps, Slate, Meagher & Flom LLP 

1440 New York Avenue, N.W. 

Washington, DC 20005 

Telephone: (202) 371-7860 

Fax: (202) 661-9126 

steve.sunshine@skadden.com 

julia.york@skadden.com 

jessica.watters@skadden.com

Maria A. Raptis

Michael J. Sheerin

Matthew M. Martino

Evan R. Kreiner

Andrew D. Kabbes 

Bradley J. Pierson 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West

New York, NY 10001 

Telephone: (212) 735-2425 

Fax: (917) 777-2425 

maria.raptis@skadden.com 

michael.sheerin@skadden.com 

matthew.martino@skadden.com 

evan.kreiner@skadden.com 

andrew.kabbes@skadden.com 

bradley.pierson@skadden.com 

Counsel for Activision Blizzard, Inc. 

Beth Wilkinson 

Rakesh N. Kilaru

Kieran Gostin

Grace L. Hill

Anastasia M. Pastan

Sarah E. Neuman

Wilkinson Stekloff LLP 

2001 M Street NW, 10th Floor 

Washington, DC 20036 

Telephone: (202) 847-4000 

Fax: (202) 847-4005 

bwilkinson@wilkinsonstekloff.com 

rkilaru@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

Michael Moiseyev

Megan A. Granger 

Weil Gotshal & Manges LLP

2001 M Street NW 

Suite 600 

Washington, DC 20036 

(202) 682-7026 

michael.moiseyev@weil.com

megan.granger@weil.com

 Counsel for Microsoft Corp. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 9 of 23 * -PUBLIC 
PUBLIC

10 

CERTIFICATE OF SERVICE

I hereby certify that on January 2, 2024, I caused a true and correct copy of the 

foregoing to be filed electronically using the FTC’s E-Filing System and served the following 

via email:

April Tabor 

Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm H-113 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

The Honorable D. Michael Chappell 

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm H-110 

Washington, DC 20580 

I also certify that I caused the forgoing document to be served via email to: 

James H. Weingarten (jweingarten@ftc.gov) 

James Abell (jabell@ftc.gov) 

Cem Akleman (cakleman@ftc.gov) 

J. Alexander Ansaldo (jansaldo@ftc.gov) 

Peggy Bayer Femenella (pbayerfemenella@ftc.gov)

Michael T. Blevins (mblevins@ftc.gov) 

Amanda L. Butler (abutler2@ftc.gov) 

Nicole Callan (ncallan@ftc.gov) 

Maria Cirincione (mcirincione@ftc.gov) 

Kassandra DiPietro (kdipietro@ftc.gov) 

Michael A. Franchak (mfranchak@ftc.gov)

James Gossmann (jgossmann@ftc.gov) 

Meredith Levert (mlevert@ftc.gov) 

David E. Morris (dmorris1@ftc.gov) 

Merrick Pastore (mpastore@ftc.gov) 

Stephen Santulli (ssantulli@ftc.gov) 

Edmund Saw (esaw@ftc.gov) 

U.S. Federal Trade Commission

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-3570 

Counsel Supporting the Complaint

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 10 of 23 * -PUBLIC 
PUBLIC

11 

/s/ Beth Wilkinson

Beth Wilkinson 

Counsel for Microsoft Corp. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 11 of 23 * -PUBLIC 
EXHIBIT 1

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 12 PUBLIC of 23 * -PUBLIC 
and 

Activision Blizzard, Inc. 

a corporation. 

DECLARATION OF KEITH DOLLIVER IN SUPPORT OF RESPONDENTS' 

RESPONSE TO COMPLAINT COUNSEL'S MOTION TO COMPEL DISCOVERY 

RESPONSES FROM RESPONDENTS 

I, Keith Dolliver, declare as follows: 

1. I am the Vice President, Deputy General Counsel, of Corporate, External, and Legal 

Affairs at Microsoft Corp. ("Microsoft"). I submit this declaration in support of 

Respondents' Response to Complaint Counsel's Motion to Compel Discovery Responses 

from Respondents. In my role, I have personal knowledge of Microsoft's negotiations 

with third parties, including the information at issue here. 

2. I have personal knowledge of the facts set forth below, and I can and would competently 

testify to such facts if called to do so. 

3. I understand that Complaint Counsel is seeking corporate deposition testimony, pursuant 

to FTC Rule of Practice 3.33(c)( 1 ), regarding negotiations to extend the termination date 

for Microsoft's acquisition of Activision Blizzard, Inc. ("Activision"), from July 18, 2023 

to October 18, 2023. 

4. I was directly involved in the negotiations over the extension of the termination date for 
Activision did not involve any discussion of a potential cloud divestiture. Rather, the 

negotiations over the extensions were entirely independent of the negotiations for any 

divesture of cloud streaming rights to Activision games. 

I declare under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct to best of my knowledge and belief. 

Executed on 29 December, 2023, in Redmond, Washi 

L 
EXHIBIT 2 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 15 PUBLIC of 23 * -PUBLIC 
PUBLIC

1 

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of 

Microsoft Corp., 

a corporation; 

and 

Activision Blizzard, Inc.

a corporation. 

Docket No. 9412 

DECLARATION OF CHRIS SCHNAKENBERG IN SUPPORT OF RESPONDENTS’ 

OPPOSITION TO COMPLAINT COUNSEL’S MOTION TO COMPEL DISCOVERY 

RESPONSES FROM RESPONDENTS

I, Chris Schnakenberg, hereby declare under penalty of perjury that the following is true 

and correct: 

1. I am Senior Vice President of Global Platform Strategy and Partner Relations for 

Activision Blizzard, Inc. (“Activision”). I submit this declaration in support of Respondents’ 

Opposition to Complaint Counsel’s Motion to Compel Discovery Responses From Respondents. 

Unless otherwise stated, the matters set forth below are based on my knowledge as a representative 

of Activision and, if called as a witness, I could and would testify competently thereto. 

2. In making this declaration, I do not intend to—and am not authorized to—waive 

any applicable privilege or protection from discovery, including the attorney-client privilege and 

the work product protection. 

3. I am the businessperson at Activision who had the most insight into the evolution 

of the Ubisoft Agreements, but I (and hence the company) cannot speak to many of the topics in

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 16 of 23 * -PUBLIC 
PUBLIC

2 

Complaint Counsel’s Second Notice of Deposition to Activision because Activision had limited 

involvement in discussions around those topics. 

4. I understand that Activision had indicated its willingness to prepare a witness to 

provide corporate testimony on Topics 2(a)-(c), 6 and 9 in Complaint Counsel’s Second Notice of 

Deposition to Activision. 

5. With respect to Topic 1 in Complaint Counsel’s Second Notice of Deposition to 

Activision, I can confirm that while Activision is aware of “[t]he terms of the Ubisoft 

Agreements,” Activision is not a party to the Sony Agreement or Microsoft’s agreements with 

Boosteroid, Nvidia, Nware, and Ubitus related to cloud streaming, and therefore cannot provide 

testimony on how the Ubisoft Agreements “will operate in conjunction with” the other “Cloud 

Streaming Agreements and the Sony Agreement.” Following the closing of the transaction on 

October 13, 2023, certain Activision personnel have been involved in Microsoft working group 

discussions about implementation of the Ubisoft and Sony agreements from a technical 

perspective, but I would not expect those Activision personnel to have unique information about 

this topic that is not also known to Microsoft. 

6. With respect to Topic 3 in Complaint Counsel’s Second Notice of Deposition to 

Activision, seeking testimony on “[h]ow the payment and pricing provisions in the Ubisoft 

Agreements were determined and their anticipated effects, including the $72 million one-time 

payment from Ubisoft to Microsoft and the pricing mechanisms set forth in Section 7.1 and 

Exhibits 5-A and 5-B to the agreement entitled Divestiture of Activision Blizzard Cloud Game 

Streaming Rights,” Activision lacks insight into how Microsoft determined the payment and 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 17 of 23 * -PUBLIC 
PUBLIC

3 

pricing provisions of the Ubisoft Agreement and what those provisions’ “anticipated effects” will 

be.

7. With respect to Topic 4 in Complaint Counsel’s Second Notice of Deposition to 

Activision, which seeks testimony about “[a]ny models, analyses, assessments, or Plans relating 

to the impact or potential impact of the Ubisoft Agreements or any terms therein (including the 

pricing and payment terms) on Microsoft’s gaming business, Activision’s gaming business, the 

Transaction valuation, the gaming business of any Cloud Gaming providers, the gaming business 

of any Subscription Service providers, or on Microsoft’s other Cloud Streaming Agreements,” I 

can confirm that Activision did not model or otherwise assess the impact or potential impact of the 

Ubisoft Agreements. 

8. With respect to Topic 5 in Complaint Counsel’s Second Notice of Deposition to 

Activision, seeking testimony about “[n]egotiations with or consideration of any alternative 

potential purchasers (i.e., other than Ubisoft) of the rights to stream Activision’s games via Cloud 

Gaming,” Activision did not “negotiat[e] with” or “consider[]” any such alternative potential 

purchaser. 

9. With respect to Topic 7 in Complaint Counsel’s Second Notice of Deposition to 

Activision, seeking corporate testimony about “[p]lans or potential Plans, whether by Ubisoft, 

Activision, Microsoft, or otherwise, to offer or license Activision content for Cloud Gaming,” 

Activision did not have any plans to offer or license Activision content for Cloud Gaming prior to 

being acquired by Microsoft. With respect to Microsoft’s or Ubisoft’s plans to offer or license 

Activision content for Cloud Gaming, Microsoft and Ubisoft are likely better-placed to answer 

those questions. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 18 of 23 * -PUBLIC 
PUBLIC

4 

Executed on January 2, 2024 in Santa Monica, CA

DATED: January 2, 2024 By: /s/ Christopher Schnakenberg 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 19 of 23 * -PUBLIC 
EXHIBIT 3 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 20 PUBLIC of 23 * -PUBLIC 
PUBLIC

1 

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of 

Microsoft Corp., 

a corporation; 

and 

Activision Blizzard, Inc.

a corporation. 

Docket No. 9412 

DECLARATION OF JULIA K. YORK IN SUPPORT OF RESPONDENTS’ 

OPPOSITION TO COMPLAINT COUNSEL’S MOTION TO COMPEL DISCOVERY 

RESPONSES FROM RESPONDENTS

I, Julia K. York, hereby declare under penalty of perjury that the following is true and 

correct: 

1. I am an attorney duly licensed to practice law in the District of Columbia. I am a 

partner in the law firm of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for Activision 

Blizzard, Inc. (“Activision”) in connection with the above-captioned matter. I submit this 

declaration in support of Respondents’ Opposition to Complaint Counsel’s Motion to Compel 

Discovery Responses From Respondents. In my role, I have personal knowledge about the 

Federal Trade Commission’s (“FTC” or the “Commission”) investigation into the transaction 

between Microsoft Corporation (“Microsoft”) and Activision, this administrative action, and the 

investigations of worldwide regulators into the transaction. 

2. Unless otherwise stated, the matters set forth below are based on my personal 

knowledge and, if called as a witness, I could and would testify competently thereto. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 21 of 23 * -PUBLIC 
PUBLIC

2 

3. In making this declaration, I do not intend to—and am not authorized to—waive 

any applicable privilege or protection from discovery, including the attorney-client privilege and 

the work product protection. 

4. On November 27, 2023, Complaint Counsel served corporate deposition notices 

on Activision and Microsoft by e-mail.

5. On December 8, 2023, Microsoft’s counsel informed Complaint Counsel via 

email that, with respect to the corporate deposition notices issued to Microsoft and Activision, 

“[m]any of the topics in each notice are identical and do not seek any information specific to 

Microsoft or Activision,” and therefore Respondents “do not think it is efficient to have more 

than one witness testify about these topics and only intend to identify one witness to testify.” 

Microsoft’s counsel also informed Complaint Counsel that Respondents would follow up with a 

proposed “list of topics for our identified witnesses at a later date.” 

6. Later on December 8, 2023, Respondents met and conferred with Complaint 

Counsel regarding the corporate deposition topics. At the meeting, Complaint Counsel stated that 

it was their position that the time allotted for each deposition is seven hours, but to the best of my 

recollection, Complaint Counsel did not specifically object to Respondents designating one 

witness to provide testimony about the topics that appear in both notices “which are identical and 

do not seek any information specific to Microsoft or Activision.” On that call, Microsoft’s 

counsel again informed Complaint Counsel that Respondents would follow up at a later date with 

proposed deposition dates and list of topics for each company’s designated witnesses.

7. On December 13, 2023, Microsoft’s counsel identified via email the deposition 

topics for which it would designate a Microsoft witness to provide corporate testimony. It also 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 22 of 23 * -PUBLIC 
PUBLIC

3 

informed Complaint Counsel that Respondents would only designate an Activision witness on 

Activision Corporate Deposition Topic 2(a)-(c), Activision Topic 6 and Activision Topic 9 

because “[a]ny testimony from an Activision witness on the remaining topics would be 

duplicative of Microsoft’s testimony, and preparing a witness on those issues would be a waste 

of resources.” Complaint Counsel did not seek to meet and confer with Respondents about this 

proposal and instead, on December 15, 2023, informed Respondents via email that they 

“intend[ed] to move to enforce the Court’s October 26 Order.” Complaint Counsel did not 

indicate that they would seek to move to compel Activision to provide corporate testimony on 

the topics which are identical to topics in the Microsoft notice and for which Microsoft had 

already agreed to designate a Microsoft witness. 

8. To the best of my recollection, Complaint Counsel did not at any point during the 

meet-and-confer process object to Respondents designating an Activision witness for only three 

corporate testimony topics and are now raising this issue for the first time in their motion to 

compel.

Executed on January 2, 2024 in Washington, D.C. 

DATED: January 2, 2024 By: /s/ Julia K. York 

Counsel for Activision Blizzard, Inc.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609259 | PAGE Page 23 of 23 * -PUBLIC