FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/23/2023 | DOCUMENT NO. 607003 | Page 1 of 8 | PUBLIC

__________________________________________ 

1 PUBLIC0F

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Microsoft Corp., )

 a corporation, and ) 

) Docket No. 9412 

Activision Blizzard, Inc., )

 a corporation, ) 

) 

Respondents. ) 

__________________________________________) 

ORDER ON MOTION OF SONY INTERACTIVE ENTERTAINMENT LLC 

TO QUASH OR LIMIT SUBPOENA DUCES TECUM 

I. 

On February 3, 2023, non-party Sony Interactive Entertainment LLC (“SIE”) filed a 

motion to quash or to limit a subpoena duces tecum served on SIE by Respondent Microsoft 

Corp. (“Microsoft”) (“Motion”). On February 13, 2023, Microsoft filed an opposition to the 

Motion (“Opposition”).1F

2 For the reasons set forth below, SIE’s Motion is GRANTED IN PART 

and DENIED IN PART. 

1 SIE and Microsoft designated some of the information in their filings as “confidential.” “[A]lthough Commission 

Rule 3.45(d) provides that parties shall not disclose confidential information, it specifically provides that the Rule 

does not preclude references in briefs to ‘confidential information or general statements based on the content of such 

information.’ 16 C.F.R. § 3.45(d).” In re ECM BioFilms, Inc., 2014 FTC LEXIS 16, at *9 (Jan. 14, 2014). This 

Order reveals only general statements based on the content of information that has been designated as confidential. 

See also In re Bristol-Myers Co., 1977 FTC LEXIS 25, at *6 (Nov. 11, 1977) (holding that an Administrative Law 

Judge may reveal information if “public disclosure is required in the interests of facilitating public understanding” of 

decisions). 

2 On February 14, 2023, SIE sought leave to file a reply in support of its Motion, pursuant to Federal Trade 

Commission (“FTC”) Rule 3.22(d), 16 C.F.R. § 3.22(d). Rule 3.22(d) provides that a reply brief “shall be permitted 

only in circumstances where the parties wish to draw the Administrative Law Judge’s or the Commission’s attention 

to recent important developments or controlling authority that could not have been raised earlier in the party’s 

principal brief.” 16 C.F.R. § 3.22(d). SIE’s proposed reply does not reference any “recent important developments 

or controlling authority” that “could not have been raised earlier” in SIE’s Motion. Accordingly, SIE’s request to file 

a reply is DENIED. 
 

 

 

 

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II. 

The Complaint in this matter alleges that Microsoft and SIE control the market for highperformance video game consoles and that Microsoft’s proposed acquisition of video game 

developer and publisher Activision Blizzard, Inc. (“Activision”)2F

3

 would give Microsoft the 

ability and incentive to withhold or degrade Activision’s content in ways that substantially lessen 

competition in the alleged relevant markets. Complaint ¶¶ 1, 60-95. 

The Complaint further alleges that SIE’s gaming console, PlayStation, competes with 

Microsoft’s gaming console, Xbox, and that the current generation of PlayStation and Xbox 

consoles are the only high-performance consoles presently available. Complaint ¶¶ 26, 28, 64. 

According to the Complaint, Microsoft and SIE compete closely for high-quality console games, 

particularly those made by Activision, and that the proposed acquisition of Activision by 

Microsoft would give the combined firm less incentive to collaborate with SIE to optimize 

Activision content for PlayStation, including by potentially limiting SIE’s access to Activision’s 

highly popular video game franchise Call of Duty. Complaint ¶¶ 6-7, 66b, 106, 112, 115. 

On January 17, 2023, Microsoft served a subpoena duces tecum on SIE, containing 45 

document requests (“Subpoena”). On January 23, 2023, SIE provided written responses and 

objections to the Subpoena. SIE and Microsoft met and conferred regarding SIE’s objections on 

five occasions. The Motion addresses the areas that remain in dispute, described more fully 

below. 

Microsoft argues that SIE’s video game business is integral to Complaint Counsel’s 

theory of anticompetitive harm in this case and that SIE documents and data are central to the 

issues presented in this litigation. In general, SIE does not contest the relevance of the 

information sought but resists discovery primarily on the ground that searching for and 

producing the disputed data and documents is unduly burdensome. Microsoft responds that SIE 

has failed to demonstrate that complying with the requested discovery presents any undue 

burden, particularly considering the relevance of SIE’s video game business to this proceeding. 

III. 

Pursuant to Rule 3.31(c)(1) of the Commission’s Rules of Practice, parties may obtain 

discovery to the extent that it may be reasonably expected to yield information relevant to the 

allegations of the complaint, to the proposed relief, or to the defenses of any respondent. 16 

C.F.R. § 3.31(c)(1). The Administrative Law Judge may deny or restrict discovery in order to 

protect a party or other person from annoyance, embarrassment, oppression, or undue burden or 

expense, or to prevent undue delay in the proceeding. 16 C.F.R. § 3.31(d). 

A non-party seeking to quash or limit a subpoena has the burden of demonstrating why 

discovery should be denied or restricted. See In re HomeAdvisor, Inc., 2022 WL 4483130, at *2 

(F.T.C. Sept. 26, 2022) (quoting In re Polypore Int’l, Inc., 2008 WL 4947490, at *6 (F.T.C. Nov. 

3 “A video game publisher is a company that publishes video games that have been developed either internally by 

the publisher or externally by a video game developer.” https://en.wikipedia.org/wiki/Video_game_publisher. 

2 
 

 

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14, 2008)). A general allegation by the non-party that a subpoena is unduly burdensome is 

insufficient to carry that burden of showing that the requested discovery should be denied. In 

re Polypore Int’l, Inc., 2009 FTC LEXIS 41, at *10 (Jan. 15, 2009). Moreover, “[e]ven where a 

subpoenaed third party adequately demonstrates that compliance with a subpoena will impose a 

substantial degree of burden, inconvenience, and cost, that will not excuse producing information 

that appears generally relevant to the issues in the proceeding.” Id. (citing In re Kaiser Alum. & 

Chem. Corp., 1976 FTC LEXIS 68, at *19-20 (Nov. 12, 1976)). 

IV. 

SIE seeks an order (A) limiting the custodians whose records are to be searched for 

responsive materials; (B) limiting the date range for responsive documents; (C) quashing 

enumerated document requests; and (D) quashing or limiting the Subpoena generally in 

accordance with purported agreements with Microsoft set forth in Exhibit H to the Motion. 

A. Request to Limit Custodians 

(1) Lin Tao and Hideaki Nishino 

SIE opposes including Lin Tao and Hideaki Nishino as custodians whose files should be 

searched for documents responsive to the Subpoena. SIE does not, as to either requested 

custodian, contend that the custodian’s files are irrelevant. As to Tao, SIE asserts that a “high 

percentage” of Tao’s files are in Japanese, which SIE argues would render searching Tao’s files 

more time-consuming and expensive. However, the declaration upon which SIE relies in its 

Motion does not quantify a cost or establish the extent of Japanese language files. See Motion 

Ex. B (Mahoney Decl. ¶ 11) (stating that “I also understand that a custodial collection of 

documents in this matter could involve review of Japanese-language files” (emphasis added)). 

Nor does SIE persuasively explain why searching for and producing Tao’s files presents an 

undue burden to SIE. Accordingly, SIE’s attempt to resist discovery as to Tao on the basis of 

undue burden is rejected.3F

4 

SIE Motion fails to include argument as to why discovery of the files of Nishino should 

be denied. Its claim that it was SIE’s understanding that Microsoft had dropped its demand for 

Nishino’s files and that Microsoft “has not mentioned” Nishino “in some time” (Motion at 6) is 

not legally dispositive. The issue on a motion to quash is not what the parties might have agreed 

to in the spirit of compromise, in order to avoid judicial resolution of a dispute, but whether the 

party resisting discovery has met its burden of establishing why discovery should be disallowed. 

As to Nishino, SIE has failed to meet that burden. 

Accordingly, SIE’s request to exclude Tao and Nishino as custodians is rejected. 

4 SIE’s proposed reply attempts to supplement Mahoney’s declaration with further details to quantify the number of 

suspected Japanese language documents and assert an estimated cost. Using a reply in this fashion is the 

quintessential effort to take a “second bite at the apple,” which is patently beyond the scope of replies permitted by 

Rule 3.22(d). Even if the revised declaration were considered, it would not change the conclusion that SIE has failed 

to establish that searching either Tao’s or Nishino’s files would be unduly burdensome to SIE. 

3 
 

 

 

 

 

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(2) Predecessor custodians 

The relevant time period under the Subpoena for the custodial record searches is January 

1, 2019 to present. Subpoena attachment, instruction 2 (Motion Ex. G). For those custodians who 

took their positions at SIE after that date, SIE seeks to limit the time period for the record search 

to the period of time since the custodian took the position and dispense with any obligation to 

search the records of those who held the position previously, i.e., the “predecessor custodians.” 

As grounds for this limitation, SIE argues that it is sufficient to search the records of the 

present custodian’s direct supervisor because the documents would “overlap” with those of the 

predecessor custodian. The implication that responsive documents in the possession of a 

predecessor custodian would necessarily also be in the possession of that custodian’s direct 

supervisor is speculative and unpersuasive. Accordingly, SIE’s request to limit the scope of the 

custodial search as requested is rejected. 

(3) Greg McCurdy 

Greg McCurdy is identified as SIE’s in-house antitrust lawyer. Microsoft contends that in 

this role, McCurdy has interacted with regulators, legislative staff, consultants, and other third 

parties regarding the challenged acquisition of Activision and that such external communications 

are relevant and not privileged. Microsoft states that, as a result of its negotiations with SIE, 

Microsoft has limited its request to McCurdy’s communications with external entities only. 

Opposition at 5. Microsoft asserts that SIE must demonstrate that such communications are 

privileged and cannot properly rest on a blanket privilege assertion. 

SIE maintains that McCurdy has no business role and that even if his communications 

with external entities were relevant, communications with external counsel and “public affairs” 

professionals were for the purpose of seeking or obtaining legal advice and are therefore 

privileged. See Ex. F (McCurdy Decl. ¶ 4). SIE further argues that it would be unduly 

burdensome to require a search of McCurdy’s files for potentially very few relevant and nonprivileged documents, and that the types of communications that Microsoft seeks will be 

obtained through searches of the files of the custodians to which Microsoft and SIE have agreed 

are relevant. 

In-house counsel are not immune from discovery merely by virtue of their role as 

lawyers, nor does SIE contend otherwise. See In re Rail Freight Fuel Surcharge Antitrust Litig., 

2009 WL 3443563, at *9-10 (D.D.C. Oct. 23, 2009) (granting motion to compel production of 

documents from in-house counsel designated as custodians). Rather, SIE contends that the 

burden of searching for responsive documents is too great because it is “likely” that such search 

will yield few non-privileged documents and that any non-privileged documents discovered are 

“unlikely” to be relevant. Motion at 5. SIE’s assertions are conclusory and unsupported. Such 

unsupported allegations are insufficient to support denying discovery. Polypore, 2009 FTC 

LEXIS 41, at *10; see also Krueger v. Ameriprise Fin., Inc., 2013 WL 12139425, at *7 (D. 

Minn. Aug. 15, 2013) (stating that the “conclusory claim that the search of [counsel]’s 

documents will result in the production of a burdensome privilege log is not reason to take her 

4 
 

 

 

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off of the list of custodians in possession of responsive ESI”). Moreover, Microsoft has narrowed 

the request to external communications only and has limited the time period to the approximately 

eight months in which McCurdy has been in his current role. This substantially reduces the 

alleged burden associated with collecting and reviewing McCurdy’s documents. Accordingly, 

SIE’s request to exclude McCurdy as a custodian is rejected. 

B. Request to Limit Date Range 

Instruction 2 of the Subpoena’s specifications provides that unless a document request 

otherwise specifies, the applicable time period for responsive documents commences on January 

1, 2019. SIE objects to requests 14, 19, 22-25, 28, 29, 35, and 43 to the extent they specify a time 

period commencing in 2012. SIE requests that these document requests be limited to the 

Subpoena’s generally applicable time period commencing in 2019.4F

5

 SIE argues that documents 

reaching back a decade are minimally relevant to this action, which is focused on the likelihood 

of future anticompetitive effects from the challenged acquisition and that imposing a burden on 

SIE to search for and produce documents going back to 2012 is unjustified. 

Microsoft counters that the foregoing requests should not be quashed but does not 

address why these requests should not be time limited as requested by SIE. Microsoft does not 

address why the requests should not be governed by the generally applicable time period 

commencing in 2019 or otherwise explain why these document requests require application of an 

extended time period. 

Requiring SIE to conduct a document search and produce documents going back ten 

years appears on its face to be excessive, especially where, as here, the issues in the case do not 

center on past conduct but on the alleged likelihood of anticompetitive effects in the future. 

Microsoft fails to explain otherwise. Accordingly, SIE’s request to limit the applicable time 

period for requests 14, 19, 22-25, 28, 29, 35, and 43 to begin January 1, 2019, is granted. 

C. Request to Quash Specified Document Requests 

(1) Request 3 

SIE seeks to quash request 3, which asks SIE to produce: “All drafts of and 

Communications regarding [SIE’s] President and CEO Jim Ryan’s declaration titled ‘SIE 

Declaration to FTC on Microsoft – Activision Blizzard Transaction,’ dated December 5, 2022.” 

SIE does not contend that the request seeks information that is not relevant. Rather, SIE states 

only that “[t]here are no non-privileged documents responsive to this request beyond SIE’s 

communication to the FTC attaching the signed declaration, which Microsoft already has.” 

Motion at 8. 

FTC Rule 3.38A(a) requires that “[a]ny person withholding material responsive to a 

subpoena” based on a claim of privilege shall, if so directed in the subpoena “submit, together 

with such claim, a schedule which describes the nature of the documents, communications, or 

tangible things not produced or disclosed - and does so in a manner that, without revealing 

5 SIE also seeks to quash request 35 entirely, based on separate objections which are addressed infra. 

5 
 

 

 

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information itself privileged or protected, will enable other parties to assess the claim.” 16 C.F.R. 

§ 3.38A(a). Instruction 14 of the Subpoena directed SIE to provide such a schedule if it were 

relying on privilege to withhold documents. Motion Ex. G, Specifications at 19. Moreover, Rule 

3.38A(b) specifies: “A person withholding material for reasons [of privilege as] described in § 

3.38A(a) shall comply with the requirements of that subsection in lieu of filing a motion to limit 

or quash compulsory process.” 16 C.F.R. § 3.38A(b). 

Based on the foregoing, SIE has failed to demonstrate that request 3 should be quashed 

and the request is rejected. 

(2) Request 13 

SIE seeks to quash request 13, which seeks documents related to “performance reviews 

or evaluations” of SIE’s CEO as well as that employee’s “direct [r]eports” or other related 

“leadership or management.” Motion at 8. SIE argues that such information is not relevant to this 

case and constitutes an unjustified invasion of employee privacy. 

Microsoft contends that the materials are relevant to understanding “the metrics on which 

SIE’s executives and business are evaluated.” Opposition at 6. This argument is unpersuasive. 

This is not an employment case and the “metrics” by which employees are evaluated have no 

apparent logical connection to the allegations of the Complaint, to the proposed relief, or to the 

defenses of any respondent. Microsoft asserts that it has agreed to limit request 13 to 

performance reviews or evaluations that are “otherwise responsive” to the Subpoena. Opposition 

at 6-7. This proffered “limitation” is too vague and overbroad to serve as a meaningful way to 

limit the production to relevant information. Moreover, employees have a privacy interest in 

maintaining the confidentiality of their personnel files. Byrd v. D.C., 2008 WL 11493720, at *4 

(D.D.C. Feb. 8, 2008). It is unclear how Microsoft’s purported limitation would preserve this 

interest. 

For all the above reasons, SIE’s request to quash request 13 is granted. 

(3) Request 35 

SIE seeks to quash request 35, which asks SIE to produce “[a]n executed copy of every 

Content licensing agreement You have entered into with any third-party publisher between 

January 1, 2012 and present.” SIE argues that such information has no apparent probative value. 

SIE further asserts that SIE’s system does not enable SIE to search for contracts by company 

type and instead requires a search by company name. Therefore, according to SIE, compiling the 

contract documents responsive to the request would require a manual review of over 150,000 

contract records with roughly 60,000 companies across various databases. SIE argues that such a 

manual review is unduly burdensome, particularly because SIE will also have to determine 

whether each contract imposes a notice obligation when disclosing the contract to a third party. 

Microsoft argues that the Complaint in this case makes a number of allegations regarding 

high-performance video game console developers’ exclusivity arrangements with video game 

publishers. Microsoft states that it is aware that SIE requires many third-party publishers to agree 

6 
 

 

 

 

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to exclusivity provisions, including preventing the publishers from putting their games on 

Xbox’s multi-game subscription service, and that understanding the full extent of SIE’s 

exclusivity arrangements and their effect on industry competitiveness will assist in its defense. 

Microsoft further contends that SIE’s 150,000 figure represents all its contracts, not just contentlicensing agreements, and that SIE presumably is aware of the names of the companies with 

which it has content-licensing agreements and can therefore create keyword searches to isolate 

the relevant contracts. 

The nature and extent of SIE’s content-licensing agreements are relevant to the 

Complaint’s allegations of exclusivity arrangements between video game console developers and 

video game developers and publishers. See, e.g., Complaint ¶¶ 9, 12, 51, 53 (referencing 

exclusivity arrangements). In addition, the alleged burden of having to review an excessive 

volume of contracts is materially decreased because, as held above, the applicable date range will 

be limited to January 1, 2019 to the present. Moreover, it is logical to assume that SIE can 

determine the names of those companies with which it has content-licensing contracts and frame 

its digital record search accordingly to minimize the need for a manual search of all its contract 

records. 

Based on the foregoing, SIE’s request to quash request 35 is rejected. 

D. Request to Quash or Limit Subpoena in Accordance with Exhibit H 

SIE requests an order limiting the definitions in the Subpoena and various unspecified 

individual document requests in accordance with a submittal attached to the Motion and 

identified as Exhibit H. SIE refers generally to its response to the Subpoena, containing 

objections to 20 separate definitions, asserting that the definitions are “overly broad, unduly 

burdensome, and vague.” Motion at 7. SIE fails to include any particulars, examples, or legal 

arguments. Moreover, SIE’s Exhibit H is not itself legal argument or an explanation for quashing 

or limiting any definition or document request, but rather appears to be a document setting forth 

SIE’s understanding of various agreements made by SIE and Microsoft in the course of 

negotiating SIE’s objections to the Subpoena. This catch-all approach by SIE fails to meet its 

burden on a motion to quash or limit.5F

6

 Accordingly, SIE’s request that the Subpoena’s 

definitions and various individual document requests be quashed or limited in accordance with 

Exhibit H is rejected. 

V. 

Based on the foregoing, the Motion is GRANTED IN PART and DENIED IN PART, 

as set forth below: 

1. SIE’s request to limit custodians is DENIED; 

6 SIE’s attempt to shift responsibility for its failure to properly support its position to Microsoft for Microsoft’s 

purported “refusal to grant an adequate extension to SIE’s time to move to quash” is unavailing. Motion at 7. While 

such agreements are encouraged, a party is not obligated to agree to extensions of time and SIE fails to explain why, 

after agreeing to three motions to extend SIE’s time to file a motion to quash, Microsoft was obligated to agree 

again. Moreover, SIE withdrew its fourth motion to extend. 

7 
 

 

 

 

 

 

 

 

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2. SIE’s request to limit document requests, including requests 14, 19, 22-25, 28, 29, 

35, and 43, to the time period January 1, 2019 to present is GRANTED; 

3. SIE’s request to quash document request 3 is DENIED; 

4. SIE’s request to quash document request 13 is GRANTED; 

5. SIE’s request to quash document request 35 is DENIED; and 

6. SIE’s request to quash or limit the Subpoena, including its definitions, 

instructions, and document requests, in accordance with Exhibit H to the Motion 

is DENIED. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: February 23, 2023 

8