PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 1 of 10 * PUBLIC *; 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corp., 

a corporation; 

Docket No. 9412 

and 

Activision Blizzard, Inc. 

a corporation. 

RESPONDENT MICROSOFT CORP.’S OPPOSITION TO NON-PARTY SONY 

INTERACTIVE ENTERTAINMENT LLC’S FOURTH MOTION FOR EXTENSION 

OF TIME TO MOVE TO LIMIT OR QUASH SUBPOENA 

Sony Interactive Entertainment (“SIE”)—whose gaming business has dwarfed Xbox’s for 

20 years—is not an ordinary third party in this action. At great expense and over an extended 

period, SIE has deployed delegations of executives, large teams of outside lawyers, and highpriced economists to persuade regulators here and around the world to block Microsoft Corp.’s 

(“Microsoft’s”) proposed acquisition of Activision Blizzard King. SIE’s efforts are paying off: 

The FTC’s complaint in this action is chock-full of allegations about the effects the deal will have 

on SIE’s business. This case is as much about SIE as it is about Xbox and Activision. Timely 

discovery from SIE is therefore critical to Microsoft’s defense. 

Though SIE’s motion for an extension of time complains about the breadth of the subpoena 

and the length of the extensions already granted for it to respond to that subpoena, Microsoft 

already told SIE it would consent to a fourth extension of time to negotiate issues related to the 

scope of the subpoena’s requests. But Microsoft believes that court intervention is required now 

on one issue: whether SIE will collect and produce documents from certain custodians. 

1
 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 2 of 10 * PUBLIC *; 

Throughout the meet and confer process, SIE has indicated that it may not be able to complete the 

reasonable custodial production requested by Microsoft before the close of discovery, and that 

even if the parties do agree on a deadline for production within the discovery timeframe, Microsoft 

“assume[s] the risk” of SIE missing that deadline. To help address that concern, Microsoft has on 

several occasions, and twice in writing, asked SIE to start collecting documents from the 

individuals that SIE and Microsoft have already agreed should be custodians. SIE has refused. 

The parties have been negotiating custodians for several weeks now and are at an impasse. 

Microsoft requests that the Court deny SIE’s motion to the extent it seeks an extension of time to 

file a motion to quash on these custodial issues. Microsoft does not oppose a week-long extension 

to conclude negotiations of non-custodian issues. 

A. Negotiations Over Custodians Have Proceeded On A Separate Track From 

Other Issues. 

Custodian negotiations have been ongoing for several weeks. While SIE asserts that the 

subpoena was served on January 17, 2023, with a response date three days later, the subpoena was 

actually served in substance on January 12, 2023. Microsoft served a substantively identical 

subpoena on January 17, 2023, to correct the entity named in the subpoena from SIE Inc. to SIE 

LLC. The parties met and conferred on custodians on January 18, January 25, January 26, and 

February 1, and exchanged the following set of custodian proposals. Though Microsoft maintains 

that its initial proposal of 13 custodians is appropriate and proportional to the needs of the litigation 

and to SIE’s involvement, in the spirit of compromise, it indicated it was willing to agree to 7 

custodians, plus a narrow search of one employee’s files. 

2
 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 3 of 10 * PUBLIC *; 

Date Proposal 

Around January 13 SIE indicates it does not believe a custodial search is 

appropriate, or at most 1 custodian should be used. 

January 18 SIE indicates it does not believe a custodial search is 

appropriate, or at most 3 custodians should be used. 

January 23 Microsoft proposes a list of 13 custodians. 

January 25 SIE proposes a list of 5 custodians. 

January 26 Microsoft proposes a list of 9 custodians. 

January 28 SIE proposes a list of 6 custodians. 

January 30 Microsoft proposes full custodial searches of 7 SIE 

employees and a narrow search from 1 employee, Greg 

McCurdy, Senior Director of Competition & Regulatory 

Affairs. 

SIE’s unsupported assertion that the custodial issues are intertwined with other issues 

related to the subpoena is just not true. From the get-go, the parties have separated and prioritized 

custodian discussions precisely because custodial collections are the key gating issue to getting 

document review and production underway. The parties recognized and intended that negotiations 

over the scope of requests could be conducted simultaneously with the collection and processing 

of custodial data. Thus, negotiations over the document requests have trailed the custodian 

negotiations.1 

B. SIE Has Not Acted Diligently With Respect To Custodians. 

Having reached agreement on at least a core set of custodians, Microsoft made the 

reasonable request that SIE begin collecting documents from agreed-upon custodians at various 

points during the negotiations, including in writing on January 26 and January 31. SIE rejected 

these requests. To Microsoft counsel’s knowledge, SIE has not completed collections for a single 

custodian—not even for individuals like SIE President & CEO Jim Ryan, who has traveled the 

1 Discussions about the scope of requests occurred on January 25 and January 26. Based on those 

meet-and-confer sessions, Microsoft set out its positions and offered a plethora of compromises in 

writing on January 31, 2023. SIE has yet to respond to Microsoft’s email. 

3
 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 4 of 10 * PUBLIC *; 

world speaking out against the Microsoft/Activision deal and whose role as a custodian has never 

been in dispute. 

SIE’s outside counsel contacted Microsoft’s counsel on the afternoon of February 2, 2023 

stating that SIE would file a contested motion for extension of time if Microsoft did not agree to 

the extension within two hours. Microsoft responded noting that it would agree to extend the time 

to move to quash on non-custodial issues so that those negotiations could continue. But given the 

parties’ impasse on custodians, those issues needed to be promptly addressed so as not to hold up 

SIE’s response to the subpoena. Rather than accept Microsoft’s offer to tee up custodian-related 

issues but continue to negotiate other issues, SIE unilaterally filed its motion for extension of time. 

Nowhere does SIE dispute that the custodian issues are ripe. Instead, SIE asserts that 

bifurcating custodians and other issues is inconsistent with the Rules of Practice. But the provision 

SIE cites—16 C.F.R. § 3.34(c)—merely indicates that a moving party must make all its arguments 

on a particular issue in an opening motion because replies are not permitted as a matter of right. 

Further, § 3.22(g) makes clear that multiple motions on a single subpoena are permissible: “Unless 

otherwise ordered by the Administrative Law Judge, the statement required by this rule must be 

filed only with the first motion concerning compliance with the discovery demand at issue.” 

(emphasis added). While Microsoft has no interest in burdening the Court with piecemeal briefing, 

the custodian issues are sufficiently distinct from any other potential issues (which in both SIE’s 

and Microsoft’s estimation likely will not be litigated) such that separate motions would not be 

inefficient. 

C. There Are A Few Custodian-Related Issues Ripe For Decision. 

Despite Microsoft’s compromises, there are a few issues on which the parties regrettably 

cannot reach agreement. First, SIE is refusing to produce any documents from Greg McCurdy, 

who has been deeply involved in SIE’s global campaign against the Microsoft/Activision deal. 

4
 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 5 of 10 * PUBLIC *; 

SIE claims that Mr. McCurdy is a lawyer and the associated burden of reviewing his documents 

for privileged material is not justified.2 To address SIE’s concerns, Microsoft offered to limit the 

search of Mr. McCurdy’s files to only those documents and communications shared outside of SIE 

(i.e., documents and communications for which there is no colorable privilege concern). SIE 

continues to refuse to collect a single document from Mr. McCurdy. 

Second, SIE is unwilling to include a single custodian with oversight of or direct 

involvement in key aspects of SIE’s business that are highly relevant to this action: SIE’s financial 

planning and strategy, and SIE’s hardware strategy and development. After initially proposing 

that PlayStation Chief Financial Officer Lin Tao be a custodian, SIE later refused to include her 

(or anyone in her reporting line) as a custodian. Likewise, SIE has not agreed to include Hideaki 

Nishino, Senior Vice President of Global Product Strategy and Management (or anyone in his 

reporting line) as a custodian, even though he oversees SIE’s hardware business, and two of the 

central questions in this matter are the scope of the relevant product market for gaming consoles 

(i.e., hardware) and whether SIE has tools in its arsenal to compensate for the hypothetical loss of 

Activision content. 

Third, SIE refuses to collect from agreed-upon custodians’ predecessors where the 

custodian has not been in his or her role for the duration of the relevant time period. 

D. SIE Cannot Show Good Cause To Extend Its Deadline To Raise CustodianRelated Issues. 

An extension of time may be granted under Rule 4.3(b) only where there is “good cause 

shown.” 16 C.F.R. § 4.3(b). SIE cannot demonstrate good cause for extending the time to move 

2 Mr. McCurdy’s role at SIE is not limited to lawyering; it also includes government affairs and 

public policy initiatives. And SIE’s counsel has never disputed that Mr. McCurdy has responsive, 

non-privileged documents in his files. 

5
 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 6 of 10 * PUBLIC *; 

to quash on custodian-related issues. An extension would serve no purpose other than to delay 

disposition of issues that are ripe for review and that are currently holding up SIE’s custodial 

collections—a necessary first step in producing documents responsive to Microsoft’s subpoena. 

SIE has had ample notice of Microsoft’s positions on custodians and cannot reasonably claim that 

it cannot meet the deadline for a motion to quash. Indeed, earlier this week, SIE’s counsel 

represented that SIE had deployed resources to draft a motion to quash in anticipation of the 

February 3 deadline. SIE should not be permitted to use the parties’ ongoing negotiations over 

separate issues to continue to stall disposition of custodian-related issues and custodial collections. 

And in light of SIE’s counsel’s repeated warnings that Microsoft “assume[s] the risk of [SIE’s] 

missed deadlines,” SIE’s assertion that an extension of seven days will not delay the proceedings 

cannot be taken seriously. 

* * * 

For the foregoing reasons, Respondents request that this Court deny SIE’s motion for 

extension of time. 

Dated: February 3, 2023 Respectfully submitted, 

By: /s/ Kieran Gostin 

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 

6
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 7 of 10 * PUBLIC *; 

rkilaru@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

7
 

 

______________________________________ 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 8 of 10 * PUBLIC *; 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corp., 

a corporation; 

Docket No. 9412 

and 

Activision Blizzard, Inc. 

a corporation. 

[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART MOTION 

FOR EXTENSION OF TIME TO MOVE TO LIMIT OR QUASH SUBPOENA 

On February 2, 2023, Non-Party Sony Interactive Entertainment LLC (“SIE”) filed its 

Fourth Motion for Extension of Time to Move to Limit or Quash or Otherwise Respond to 

Respondent Microsoft’s Corp.’s subpoena. 

Pursuant to Rule 4.3 of the Commission’s Rules of Practice, 16 C.F.R. § 4.3(b), the Court 

finds that SIE has failed to show good cause for the extension sought. The motion is hereby 

DENIED IN PART and GRANTED IN PART. SIE is given until February 3, 2023 to move to 

limit or quash Respondent’s subpoena as to custodial issues and until February 10, 2023 to move 

to limit or quash Respondent’s subpoena based on any other issues. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: February ___, 2023 

8
 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 9 of 10 * PUBLIC *; 

CERTIFICATE OF SERVICE 

I hereby certify that on February 3, 2023, 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) 

Taylor Alexander (talexander@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) 

Jennifer Fleury (jfleury@ftc.gov) 

Michael A. Franchak (mfranchak@ftc.gov) 

James Gossmann (jgossmann@ftc.gov) 

Ethan Gurwitz (egurwitz@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 

9
 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/7/2023 | Document No. 606872 | PAGE Page 10 of 10 * PUBLIC *; 

D. Bruce Hoffman (bhoffman@cgsh.com) 

Leah Brannon (lbrannon@cgsh.com) 

Carl Lawrence Malm (lmalm@cgsh.com) 

Isabel Tuz (ituz@cgsh.com) 

Everett K. Coraor (ecoraor@cgsh.com) 

Cleary Gottlieb Steen & Hamilton LLP 

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

Telephone: (202) 974-1500 

Counsel for Non-Party Sony Interactive Entertainment LLC 

Steven C. Sunshine (steve.sunshine@skadden.com) 

Julia K. York (julia.york@skadden.com) 

Jessica R. Watters (jessica.watters@skadden.com) 

Skadden, Arps, Slate, Meagher & Flom LLP 

1440 New York Avenue, N.W. 

Washington, D.C. 20005 

Telephone: (202) 271-7860 

Maria A. Raptis (maria.raptis@skadden.com) 

Michael J. Sheerin (michael.sheerin@skadden.com) 

Matthew M. Martino (matthew.martino@skadden.com) 

Evan R. Kreiner (evan.kreiner@skadden.com 

Andrew D. Kabbes (andrew.kabbes@skadden.com) 

Bradley J. Pierson (bradley.pierson@skadden.com) 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West 

New York, NY 10001 

Telephone: (212) 735-2425 

Counsel for Activision Blizzard, Inc. 

/s/ Kieran Gostin 

Kieran Gostin 

Counsel for Microsoft Corp. 

10