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UNITED STATES OF AMERICA 

BEFORE THE 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. 

SONY INTERACTIVE ENTERTAINMENT LLC’S MOTION TO 

QUASH OR LIMIT SUBPOENA DUCES TECUM

 Non-party Sony Interactive Entertainment LLC (“SIE”) respectfully requests that the Court 

quash or limit Microsoft’s January 17 subpoena (the “Subpoena”) as described below. 

INTRODUCTION 

Microsoft’s Subpoena to SIE is truly massive. Since receiving it, SIE has engaged in five 

meet and confers with Microsoft, served a 55-page set of detailed written responses and objections 

at Microsoft’s demand, and had extensive correspondence with Microsoft. On the evening of 

February 1, 2023, SIE and Microsoft generally agreed that SIE would produce files from seven 

identified custodians, but numerous additional scope issues remained. SIE requested an extension 

of time to resolve these, but Microsoft refused unless SIE agreed to file a partial motion to quash 

on the issue of Microsoft’s choice two days later. This gamesmanship by Microsoft is inefficient 

and inappropriate. 

SIE respectfully requests that the Court limit the Subpoena as discussed below. 

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ARGUMENT 

Courts limit discovery where it is “unreasonably cumulative or duplicative, or is obtainable 

from some other source that is more convenient, less burdensome, or less expensive” or “the 

burden and expense of the proposed discovery . . . outweigh its likely benefit.” 16 C.F.R. 

§ 3.31(c)(2)(i),(iii). Further, this Court may deny discovery “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). This Court should take special care to ensure nonparties, such as SIE, are treated fairly by Respondents in FTC proceedings. Cf. Concord Boat 

Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996) (“[T]he status of a witness as a nonparty . . . entitles [the non-party] to consideration regarding expense and inconvenience.”). 

I. Issues Microsoft Wants Resolved Now 

Up until last night, February 2, 2023, SIE understood that Microsoft agreed to SIE 

searching the files of seven custodians: Jim Ryan, Hermen Hulst, Eric Lempel, Nick Maguire, 

Veronica Rogers, Phil Rosenberg, and Christian Svensson (the “Seven Custodians”). See, e.g., 

Ex. A (S. Neuman 1/30 Email at 1) (proposing a “custodial search of the files of the following 7 

individuals” and listing the Seven Custodians); Ex. D (S. Neuman 2/2 Email at 1). Their files 

cover the substantive issues in the case. The Seven Custodians are SIE’s Chief Executive Officer 

(Ryan), Head of Play Station Studios (Hulst), SVP of Worldwide Marketing (Lempel), VP Global 

Head of Subscriptions (Maguire), SVP of Global Sales and Business Operations (Rogers), SVP 

Head of Global Partner Development (Rosenberg), and VP Head of Global Third Party Relations 

(Svensson). The Seven Custodians have a high volume of documents, and collecting, processing, 

reviewing, and producing from the Seven Custodians will be burdensome, Ex. B (Mahoney Decl. 

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¶¶ 12-16); Ex. C (L. Malm 2/1 Email at 1-2), particularly given the shortened fact discovery period 

Microsoft chose here. 

Microsoft said it also wanted files from the Seven Custodians’ predecessors, files from an 

in-house lawyer, and various specific documents (discussed further below, in connection with 

issues that Microsoft prefers be addressed in a later motion), but did not say it needed other 

custodial files. Then, last night, Microsoft threatened that if SIE moved to quash Microsoft might 

demand files from two more individuals whose custodial files it had previously agreed it did not 

need, Lin Tao and Hideaki Nishino. Ex. D (S. Neuman 2/2 Email at 1).1 

A. Predecessor Custodians Should Not Be Required 

Microsoft wants predecessors to the Seven Custodians. But SIE has agreed to provide 

documents further back in time than an ordinary Second Request (to January 1, 2019, four years 

ago), and in fact most of the Seven Custodians have been in their positions since at least 2019, if 

not earlier. The only two custodians who took their positions more recently are ones for whom 

SIE has added overlapping coverage: Veronica Rogers joined in 2020, but her direct report, Nick 

Maguire, has been in a subscription-related role since the beginning of 2019. And Christian 

Svensson took his position in 2021, but his direct supervisor, Phil Rosenberg, has been in his role 

since the beginning of 2019. Given this overlapping coverage, demanding that non-party SIE 

search for older files of predecessors, particularly in a forward-looking case in which Microsoft 

says the market is rapidly evolving, would be disproportionate to the needs of the case. 

1 Microsoft asserted in a filing earlier today that SIE has not acted diligently with respect to 

custodians. Opp. to Mot. to Extend at 3 (filed Feb. 3, 2023). Microsoft has no basis for this 

statement, and it is wrong. Mot. to Extend Reply at 1 (filed Feb. 3, 2023). 

3 
 

 

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B. A Custodial Search of SIE’s In-House Lawyer Should Not Be Required 

Microsoft has demanded custodial documents from SIE’s in-house antitrust lawyer, Greg 

McCurdy. Custodial searches of in-house lawyers are rare. See, e.g., In re Keurig Green Mountain 

Single-Serve Coffee Antitrust Litig., No. 14-md-02542-VSB-SLC (S.D.N.Y. Feb. 14, 2020) (ECF 

No. 750) (denying request for in-house counsel’s documents); Royal Park Invs. SA/NV v. Deutsche 

Bank Nat’l Tr. Co., 2017 WL 9802844, at *2-3 (S.D.N.Y. Sept. 15, 2017) (declining to add inhouse counsel as custodians); cf. In re Hoechst Marion Roussel, 2000 FTC LEXIS 155, at *3-4 

(Oct. 17, 2000) (where there is a dearth of Commission precedent, federal decisions provide 

helpful guidance). 

Microsoft originally said it wanted Mr. McCurdy’s documents because it believed he 

communicated with the FTC, worked 

and 

Ex. A (S. Neuman 1/30 Email at 6). 

[ ]

[ ] [ ]

[ ]

As for SIE’s communications with the FTC, Microsoft does not deny that it has them 

already. 

As for Mr. McCurdy’s internal communications 

Microsoft has dropped this demand. Ex. A (S. Neuman 1/30 Email at 1).

[

]

Microsoft now says it only wants Mr. McCurdy’s communications with people external to 

SIE. Microsoft argues there is no privilege review burden because for external documents “there 

is no colorable privilege concern.” Opp. to Mot. to Extend at 5. This is obviously wrong. To take 

one example, Mr. McCurdy’s communications with SIE’s outside counsel are privileged, and 

Microsoft says they need not be produced. But the same holds true with respect to economists and 

other consultants SIE retained in connection with this matter. See, e.g., Fed. Trade Comm’n v. 

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GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (public relations and government affairs 

consultants were “completely intertwined with [party’s] litigation and legal strategies” and should 

be treated as company employees for purposes of determining privilege). And finding and 

producing the likely tiny subset of non-substantive materials that might be non-privileged would 

be both very burdensome and unlikely to produce relevant material, and thus inappropriate for 

discovery. Ex. F (McCurdy Decl. ¶ 5). 

Microsoft says it wants communications with industry participants regarding the 

transaction. But SIE has agreed to produce such communications from the files of the Seven 

Custodians, two of whom lead SIE’s communications with industry participants: Phil Rosenberg, 

Head of Global Partner Development, and his direct report, Christian Svensson, Head of Global 

Third Party Relations. There is no need to invade a lawyer’s custodial files to discover 

communications related to the transaction and doing so would not be proportionate to the needs of 

the case, which, after all, turns on whether Microsoft’s acquisition of Activision may lessen 

competition. Microsoft’s demand would impose cost that outweighs the benefit. 16 C.F.R. § 

3.31(c)(2)(i)-(iii). Microsoft has argued that because Mr. McCurdy has only worked at SIE for 

eight months collecting and reviewing his documents should not be burdensome. But manually 

reviewing eight months of an attorney’s external communications—when Microsoft is already 

receiving documents on the topic at issue from other sources—is not reasonable. 

Avoiding Mr. McCurdy’s files is consistent with what Microsoft did when the shoe was on 

the other foot. [ ]

[ ]

[ ]

[ ]

5 


	 

 

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	 RECORD

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related to nearly all aspects of SIE’s business, as well as extensive sets of sales, financial, and 

personal user data (e.g., user date of birth, country, gender, for likely millions of users). Ten of 

these requests seek materials going back more than 11 years. Even after intensive efforts by SIE 

to negotiate scope, SIE estimates that providing just the custodial files SIE has offered from the 

Seven Custodians will cost approximately $2 million and [ ]

[ ] See Ex. B (Mahoney Decl. ¶¶ 12-14). [ ]

[ ] And these documents 

are only a portion of what SIE has offered. More is not proportionate to impose on a non-party. 

We highlight selected issues below and provide additional context in Exhibit H. 

1. Date Range 

[ ]

[ ]

[ ] Decade-old material is of lower utility in this forwardlooking litigation. In light of the massive discovery burden non-party SIE has agreed to undertake, 

including more than four years’ worth of data, SIE submits that more is disproportionate. 

2. Definitions 

SIE has objected to the definitions that are overly broad, unduly burdensome, and vague. 

SIE has proposed more concrete definitions. See Ex. I (SIE’s Responses and Objections); Ex. H. 

Microsoft engaged with SIE on only a few of SIE’s proposed definitions, and in light of 

Microsoft’s refusal to grant an adequate extension to SIE’s time to move to quash, SIE asks that 

the Court limit the Subpoena accordingly. 

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3. Individual Document Requests 

In addition to the issues noted below, SIE has made a reasonable offer of financial reports in 

lieu of Lin Tao’s custodial files and the Subpoena should be so limited. 

a. Request 3: [

]

]

[ ]

[

There are no non-privileged documents responsive to this request beyond SIE’s 

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

Accordingly, this document request should be quashed. 

b. Request 13: [ ]

[ ]

[ ]

Microsoft’s demand for performance reviews for SIE’s leadership is obvious harassment. 

Even in employment cases courts require a specific showing of relevance before requiring 

production of personnel files. See, e.g., Achille v. Chestnut Ridge, 584 F. App’x 20, 23 (2d Cir. 

2014) (denying request for personnel files as unjustified “fishing expedition”); Byrd v. D.C., No. 

CV 06-0522(HHK/AK), 2008 WL 11493720, at *4 (D.D.C. Feb. 8, 2008) (similar). This is not 

an employment case. Microsoft speculates these documents may “candidly” discuss the 

performance of SIE’s gaming business, Ex. J (E. Clarke 1/31 Email at 8), but SIE will be producing 

ordinary course documents that directly relate to its gaming business in the files of the Seven 

Custodians, see, e.g., Ex. G (Subpoena Document Request Nos. 14, 16). 

c. Request 35: [ ]

[ ]

This request has no apparent probative value, but would require [ ]

[ ]

[ ]

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[ ]

[ ]

[ ]

[ ]

[ ]

 This huge burden for material of little if any relevance is clearly 

disproportionate. 

CONCLUSION 

[ ]

For the foregoing reasons, SIE respectfully requests that the Court quash or limit the 

Subpoena to the modifications proposed herein and reflected in Exhibit H. 

Dated: February 3, 2023 

Respectfully, 

/s/ Isabel Tuz 

D. Bruce Hoffman 

Leah Brannon 

Carl Lawrence Malm 

Isabel Tuz 

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

T: +1 202 974 1563 

Cleary Gottlieb Steen & Hamilton LLP 

Counsel for Non-Party Sony Interactive 

Entertainment LLC 

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UNITED STATES OF AMERICA 

BEFORE THE 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. 

STATEMENT OF LEAH BRANNON PURSUANT TO FEDERAL TRADE 

COMMISSION RULE OF PRACTICE 3.22(G) 

I am an attorney at Cleary Gottlieb Steen & Hamilton LLP. I represent non-party Sony 

Interactive Entertainment LLC in this matter and submit this statement pursuant to Rule 3.22(g) 

of the FTC Rules of Practice. 16 C.F.R. § 3.22(g). My colleagues and I have conferred with 

opposing counsel in a good faith effort to resolve by agreement the issues raised by the attached 

motion to limit or quash Microsoft Corp.’s subpoena duces tecum but have been unable to reach 

such an agreement. 

We met with Sarah Neuman and/or Kieran Gostin, counsel for Microsoft Corp., five 

separate times in an attempt to reach agreement: 

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Ɣ On January 18, 2023 at 10:00 AM ET, telephonically; 

Ɣ On January 24, 2023 at 4:00 PM ET, telephonically; 

Ɣ On January 25, 2023 at 10:00 AM ET, telephonically; 

Ɣ On January 26, 2023 at 1:00 PM ET, telephonically; 

Ɣ On February 1, 2023 at 8:30 PM ET, telephonically. 

Although these meetings have been productive, we have not yet reached agreement on any portion 

of the subpoena. 

Dated: February 3, 2023 

Respectfully, 

/s/ Leah Brannon 

D. Bruce Hoffman 

Leah Brannon 

Carl Malm 

Isabel Tuz 

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

T: +1 202 974 1563 

Cleary Gottlieb Steen & Hamilton LLP 

Counsel for Non-Party Sony Interactive 

Entertainment LLC 

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UNITED STATES OF AMERICA 

BEFORE THE 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. 

[PROPOSED] ORDER GRANTING MOTION TO LIMIT OR QUASH SUBPOENA 

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

Motion to Limit or Quash a subpoena (“Motion”) served by Respondent Microsoft Corp. 

(“Microsoft”) on January 17, 2023. 

SIE has demonstrated good cause for the requested relief. Accordingly, the Motion is 

GRANTED and it is hereby ORDERED that: 

• The Subpoena is limited to requesting documents from seven custodians: Hermen Hulst, 

Eric Lempel, Nick Maguire, Veronica Rogers, Phil Rosenberg, Jim Ryan, Christian 

Svensson, and no predecessor custodians shall be required; 

• The Subpoena is limited to requesting data and documents from January 1, 2019 through 

January 17, 2023; 

• Document request number 3 is quashed; 

• Document request number 13 is quashed; 

• The Definitions in the Subpoena are limited as reflected in Exhibit H to the Motion; 

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• The Documents Requests and Instructions are limited as reflected in Exhibit H to the 

Motion. 

• The Subpoena is limited as reflected in Exhibit H to the Motion. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: February , 2023 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 8, 2023, I filed the foregoing document electronically 

using the Federal Trade Commission’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 

ElectronicFilings@ftc.gov 

Washington, D.C. 20580 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-110 

Washington, D.C. 20580 

OALJ@ftc.com 

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

Complaint Counsel 

James Weingarten 

James Abell 

Meredith Levert 

Jennifer Fleury 

Cem Akleman 

Taylor Alexander 

Amanda Butler 

Merrick Pastore 

Nicole Callan 

Ethan Gurwitz 

Maria Cirincione 

James Gossmann 

Stephen Santulli 

Edmund Saw 

Michael A. Franchak 

Peggy Bayer Femenella 

Kassandra DiPietro 

Justin Alexander Ansaldo 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, D.C. 20580 

(202) 326-2289 

jweingarten@ftc.gov 

jabell@ftc.gov 

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mlevert@ftc.gov 

jfleury@ftc.gov 

cakleman@ftc.gov 

talexander@ftc.gov 

abutler2@ftc.gov 

mpastore@ftc.gov 

ncallan@ftc.gov 

egurwitz@ftc.gov 

mcirincione@ftc.gov 

jgossmann@ftc.gov 

ssantulli@ftc.gov 

esaw@ftc.gov 

mfranchak@ftc.gov 

pbayerfemenella@ftc.gov 

kdipietro@ftc.gov 

jansaldo@ftc.gov 

Counsel for Respondent Microsoft Corp. 

Beth Wilkinson 

Rakesh N. Kilaru 

Kieran Gostin 

Grace L. Hill 

Anastasia M. Pastan 

Alysha Bohanon 

Sarah E. Neuman 

Wilkinson Stekloff LLP 

2001 M Street, NW 

Washington, D.C. 20036 

(202) 847-4010 

bwilkinsonstekloff.com 

rkilaru@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

abohanon@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

Michael Moiseyev 

Megan Granger 

Weil, Gotshal & Manges LLP 

2001 M Street, NW 

Washington, D.C. 20036 

(202) 682-7235 

michael.moiseyev@weil.com 

megan.granger@weil.com 

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Counsel for Respondent Activision-Blizzard, Inc. 

Steven C. Sunshine 

Julia K. York 

Jessica R. Watters 

Skadden, Arps, Slate, Meagher & Flom LLP 

1440 New York Avenue, N.W. 

Washington, D.C. 20005 

(202) 271-7860 

steve.sunshine@skadden.com 

julia.york@skadden.com 

jessica.watters@skadden.com 

Maria A. Raptis 

Michael J. Sheerin 

Evan R. Kreiner 

Andrew D. Kabbes 

Bradley J. Pierson 

Matthew M. Martino 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West 

New York, NY 10001 

(212) 735-2425 

maria.raptis@skadden.com 

michael.sheerin@skadden.com 

evan.kreiner@skadden.com 

andrew.kabbes@skadden.com 

bradley.pierson@skadden.com 

matthew.martino@skadden.com 

Respectfully submitted, 

/s/ Isabel Tuz 

D. Bruce Hoffman (bhoffman@cgsh.com) 

Leah Brannon (lbrannon@cgsh.com) 

Carl Lawrence Malm (lmalm@cgsh.com) 

Isabel Tuz (ituz@cgsh.com) 

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

T: +1 202 974 1500 

CLEARY GOTTLIEB STEEN & HAMILTON LLP 

Counsel for Non-Party Sony Interactive 

Entertainment LL 

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