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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

Docket No. 9412 

COMPLAINT COUNSEL’S OPPOSITION TO MICROSOFT CORPORATION’S 

MOTION TO REOPEN DISCOVERY

Complaint Counsel respectfully opposes Respondent Microsoft Corporation’s 

(“Microsoft”) motion to reopen discovery for the purpose of serving subpoenas ad testificandum 

on Ubisoft Entertainment SA (“Ubisoft”) and Sony Interactive Entertainment LLC (“Sony”) 

regarding the Ubisoft and Sony Agreements. Microsoft has no good cause for reopening 

discovery. First, Microsoft’s request is untimely. Second, Microsoft has sufficient time to take 

testimony from both Sony and Ubisoft under this Court’s January 4, 2023 Scheduling Order

(“Scheduling Order”). Third, Microsoft does not need additional deposition time from Ubisoft or 

Sony. Microsoft has a close commercial relationship with Ubisoft: it has {

} and has even shielded communications between the two companies 

that are relevant to this litigation under an assertion of common interest privilege. Further, 

Microsoft has been aware of the terms of the Sony Agreement for { }, and has 

In the Matter of

Microsoft Corp.

a corporation; 

and 

Activision Blizzard, Inc.,

a corporation. 

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not sought to reopen discovery until now. Accordingly, the Court should deny Respondent’s 

motion. 

BACKGROUND 

Fact discovery in this proceeding closed on April 7, 2023. On July 15, 2023, Microsoft 

and Sony executed the Sony Agreement, and on August 21, 2023, Microsoft, Respondent 

Activision Blizzard, Inc. (“Activision”), and Ubisoft executed the Ubisoft Agreement. On 

October 10, 2023, Complaint Counsel moved to reopen discovery related to these agreements. 

See Complaint Counsel’s Mot. to Extend Fact Discovery to Allow Discovery Regarding 

Respondents’ Agreements with Ubisoft and Sony (Oct. 10, 2023). Respondents opposed 

Complaint Counsel’s motion. See Resp. Microsoft’s Opp. to Complaint Counsel’s Mot. to 

Extend Fact Discovery (Oct. 20, 2023) (“Microsoft’s Oct. 20 Opp.”). 

On October 26, 2023, the Court granted Complaint Counsel leave to obtain discovery 

relating to the Ubisoft and Sony Agreements and set a discovery deadline of December 21, 2023. 

See Order on Complaint Counsel’s Mot. to Allow Discovery Regarding Respondents’ 

Agreements with Ubisoft and Sony (Oct. 26, 2023) (“Oct. 26 Order). In the final days of this 

limited discovery period, Microsoft abruptly reversed its position and, without seeking leave 

from the Court, issued a subpoena duces tecum and subpoena ad testificandum to Sony and two 

subpoenas ad testificandum to Ubisoft. See Exhibit A, Exhibit B, Exhibit C, and Exhibit D. 

On December 21, 2023, Microsoft moved to certify its subpoena duces tecum to Sony. 

On January 8, 2024, the Court denied that motion. The Court ruled that the October 26 Order did 

not grant Respondents leave to take discovery and that Microsoft had failed to seek leave to 

reopen discovery and had instead served the subpoena “on its own volition.” See Order Denying 

Microsoft’s Motion to Certify (Jan. 8, 2024). Microsoft did not move to certify its subpoena ad 

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testificandum to Sony nor its subpoenas ad testificandum to Ubisoft, but those subpoenas are 

invalid for the same reasons Microsoft’s subpoena duces tecum to Sony was invalid—as 

Microsoft’s motion here acknowledges. See Respondent Microsoft’s Motion to Reopen 

Discovery at 2 (Jan. 16, 2024) (“Resp. Mot. to Reopen Discovery”). 

On January 11, 2024, nearly three months after opposing Complaint Counsel’s motion to 

reopen discovery, Microsoft conveyed its view that discovery should be reopened for a second 

time to allow Microsoft to serve subpoenas ad testificandum on Ubisoft and Sony. After meeting 

and conferring, Complaint Counsel informed Microsoft on January 16, 2024, that it intended to 

oppose Microsoft’s motion. 

ARGUMENT

I. Microsoft’s Request to Reopen Discovery Is Untimely

Microsoft’s request to reopen discovery is untimely because it comes weeks after the 

close of supplemental discovery and three months after Complaint Counsel moved to reopen 

discovery. 

Indeed, Microsoft’s request stands in stark contrast with its past positions and actions 

regarding supplemental discovery. Microsoft originally opposed the discovery it is now trying to 

reopen, arguing that the agreements at issue “speak for themselves.” Microsoft’s Oct. 20 Opp. at 

3. Microsoft’s months-long failure to move for permission to issue its own subpoenas does not 

provide grounds to reopen discovery now -- a month after the end of the reopened discovery 

period. 

Microsoft had ample time to seek leave to attempt to serve timely deposition subpoenas

on Ubisoft and Sony. Given Microsoft’s failure to pursue the discovery it seeks in a timely 

manner, the Court should deny Microsoft’s motion here. 

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II. Microsoft Already Has Sufficient Time to Take Testimony from Ubisoft and Sony 

under This Court’s Existing Scheduling Order

Despite Microsoft’s representations to the contrary, see Resp. Mot. to Reopen Discovery 

at 4-5, the Court’s Scheduling Order provides sufficient deposition time to take testimony from 

both Ubisoft and Sony. Under Additional Provision 12 of the Scheduling Order, a side that does 

not subpoena a non-party fact deposition is allotted 1.5 hours of questioning at the deposition.

1

See Scheduling Order Additional Provision 12. 

Microsoft has not shown any good cause to take more than the 1.5 hours of testimony it is 

already granted under the Scheduling Order. Indeed, in its 14-page motion, Microsoft fails to 

raise any argument as to why it requires more time than 1.5 hours, and instead continues to assert 

that the agreements “speak for themselves.” Resp. Mot. to Reopen Discovery at 5. If Microsoft’s 

position is that the agreements speak for themselves, then it does not need additional deposition 

time. Moreover, having 1.5 hours of deposition time does not deprive Microsoft of the 

opportunity to “counter any suggestion that the agreements are inadequate.” Resp. Mot. To 

Reopen Discovery at 5. Microsoft will have ample opportunity to present its arguments about the 

agreements at the hearing and in briefing. 

Notwithstanding Microsoft’s failure address the time it does have, given Microsoft’s 

commercial relationship with both Sony and Ubisoft and its familiarity with the agreements and 

negotiations at issue, 1.5 hours per deposition is sufficient time to cover the issues Microsoft 

raises in its motion to reopen discovery. Resp. Mot. to Reopen Discovery at 2-3. As discussed 

below, Microsoft has a close legal and business relationship with Ubisoft and has been familiar 

with the operative terms of the Sony Agreement for { } 

1 In contrast, if Complaint Counsel and Respondents both issue a subpoena ad testificandum to a non-party fact 

witness, the deposition time is split equally. See Scheduling Order Additional Provision 12. 

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A. Microsoft Has Not Shown Good Cause for Additional Time to Depose Ubisoft

Microsoft is well-positioned to understand the terms and likely competitive effects of the 

Ubisoft Agreement without additional deposition time beyond the 1.5 hours it is entitled to under 

the Scheduling Order. In addition to being the counterparty to the Ubisoft Agreement, 

{

} See Exhibit E; 

Exhibit F; Exhibit G. Microsoft and Ubisoft are coordinating so closely in this case that

{

} See Exhibit L; Exhibit M. 

By contrast, Complaint Counsel has struggled to obtain information relevant to the 

Ubisoft Agreement. Microsoft and Ubisoft have shielded relevant information from Complaint 

Counsel by asserting a common interest privilege over communications. See Exhibit H, at 7 

(“Microsoft withheld or redacted communications with Ubisoft containing privileged 

information regarding subject matters for which the parties shared a common legal interest.”); 

see also Exhibit E; Exhibit K. And while Ubisoft is cooperating with Microsoft, Ubisoft has 

refused to respond to various discovery requests from Complaint Counsel. See Exhibit I. Under 

these circumstances, Microsoft has not shown good cause why it needs additional time to depose 

Ubisoft, a third party with legal and commercial interests that are clearly aligned with 

Microsoft’s interests. 

Complaint Counsel’s efforts to obtain information during the supplemental discovery 

period permitted by this Court confirms the importance of Complaint Counsel—not Microsoft—

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taking additional discovery from Ubisoft. After initially executing the Ubisoft Agreement on 

August 21, 2023, {

} Complaint Counsel did not learn of these {

} were required to produce them in 

supplemental discovery. After the close of supplemental discovery, Complaint Counsel learned 

that the {

}

Troublingly, neither company produced documents related { } in response 

to Complaint Counsel’s document requests. Instead, Complaint Counsel only learned of 

{ } during Microsoft’s corporate deposition on January 17, 2024. Microsoft 

then produced two documents that its corporate representative was aware of during the 

deposition. This course of events—including the production of responsive communications 

between Microsoft and Ubisoft during Microsoft’s corporate deposition—underscores the 

importance of Complaint Counsel having sufficient time to take testimony from Ubisoft. 

B. Microsoft Has Not Shown Good Cause for Additional Time to Depose Sony

Microsoft’s stated reasons for why it needs to issue its own subpoena ad testificandum to 

Sony are likewise unpersuasive. The executed July 15, 2023, Sony Agreement is { 

} See Oct. 26 Order at 2. Microsoft 

is best positioned to understand the terms and implications of the agreement that {

} and does not attempt to explain why it needs more than its 

allotted 1.5 hours to explore this topic. Moreover, Microsoft and Sony {

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} 

*** 

If the Court does grant Microsoft’s motion for leave to issue a subpoena ad testificandum

to Sony, Microsoft should be limited to issuing the same subpoena it invalidly issued on 

December 12, 2023. See Exhibit A. The deposition topics in that subpoena substantially overlap 

with those in the subpoena ad testificandum issued by Complaint Counsel to Sony on November 

30, 2023. See Exhibit J. Given that the Sony deposition is scheduled to take place on February 8, 

2024, Microsoft should not be permitted to issue a more expansive subpoena ad testificandum

with additional topics not contained in its original, invalidly issued subpoena to Sony. To allow 

Microsoft to issue a more expansive subpoena would introduce additional and potentially 

substantial delay, as the deposition would likely need to be rescheduled to allow Microsoft and 

Sony to negotiate the additional topics and engage in motions practice if necessary, and to allow 

the witness to be educated on the additional topics. 

CONCLUSION

For the foregoing reasons, Microsoft’s motion should be denied with prejudice. 

Dated: January 24, 2024 Respectfully submitted,

By: /s/ Merrick Pastore

Merrick Pastore

Nicole Callan

Meredith R. Levert

James H. Weingarten

Peggy Bayer Femenella 

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Federal Trade Commission

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-2234 

Email: mpastore@ftc.gov 

ncallan@ftc.gov 

mlevert@ftc.gov

jweingarten@ftc.gov 

pbayerfemenella@ftc.gov

Counsel Supporting the Complaint 

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EXHIBIT A 

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EXHIBIT E 

Microsoft Privilege Log

(excerpted)

 

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CERTIFICATE OF SERVICE

I hereby certify that on January 24, 2024, I filed the foregoing document electronically using the 

FTC’s E-Filing System, which will send notification of such filing to: 

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 foregoing document to be served via email to: 

Beth Wilkinson

Rakesh Kilaru

Alysha Bohanon 

Anastasia Pastan

Grace Hill

Sarah Neuman

Kieran Gostin

Wilkinson Stekloff LLP 

2001 M Street, NW 

Washington, DC 20036 

(202) 847-4010 

bwilkinson@wilkinsonstekloff.com 

rkilaru@wilkinsonstekloff.com 

abohanon@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

Mike Moiseyev

Megan Granger

Weil, Gotshal & Manges LLP

2001 M Street, NW 

Washington, DC 20036 

(202) 682-7235 

michael.moiseyev@weil.com 

Steven Sunshine

Julia K. York 

Jessica R.Watters

Skadden, Arps, Slate, Meagher & Flom LLP

1440 New York Ave, NW 

Washington, DC 20005 

(202) 371-7860 

steve.sunshine@skadden.com 

julia.york@skadden.com 

jessica.watters@skadden.com

Maria Raptis

Matthew M. Martino 

Michael Sheerin

Evan R. Kreiner 

Bradley J. Pierson 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West 

New York, NY 10001 

(212) 735-2425 

maria.raptis@skadden.com

matthew.martino@skadden.com 

michael.sheerin@skadden.com 

evan.kreiner@skadden.com 

bradley.pierson@skadden.com 

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megan.granger@weil.com 

Counsel for Microsoft Corporation 

Counsel for Activision Blizzard, Inc.

By: s/ James H. Weingarten 

 James H. Weingarten

 Counsel Supporting the Complaint 

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