UNITED STATES OF AMERICA 

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 

RESPONDENT MICROSOFT CORPORATION’S MOTION TO REOPEN DISCOVERY 

FOR THE LIMITED PURPOSE OF SERVING SUBPOENAS AD TESTIFICANDUM ON 

UBISOFT ENTERTAINMENT SA AND SONY INTERACTIVE ENTERTAINMENT

LLC

Respondent Microsoft Corporation (“Microsoft”) respectfully moves to reopen discovery 

for the limited purpose of serving subpoenas ad testificandum on Ubisoft Entertainment SA 

(“Ubisoft”) and Sony Interactive Entertainment LLC (“Sony”) regarding the Ubisoft and Sony 

Agreements. Pursuant to FTC Rule 3.21(c)(2) and outlined in the corresponding Memorandum, 

there is good cause for reopening discovery for this limited purpose—namely, fairness and 

timeliness.

Fact discovery in this proceeding closed on April 7, 2023. Shortly thereafter, Microsoft 

and Sony executed the Sony Agreement on July 15, 2023, and Respondents and Ubisoft executed 

the Ubisoft Agreements on August 21, 2023. On October 10, 2023, Complaint Counsel moved to 

reopen discovery on these agreements. See Complaint Counsel’s Motion to Extend Fact Discovery 

To Allow Discovery Regarding Respondents’ Agreements With Ubisoft Entertainment SA And 

Sony Interactive Entertainment LLC (“Oct. 10, 2023 Motion”). On October 26, 2023, in relevant 

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part, the Court ordered that Complaint Counsel was granted leave to serve subpoenas ad 

testificandum relating to the Ubisoft and Sony Agreements and reopened discovery for eight 

weeks, ending on December 21, 2023. See Order On Complaint Counsel’s Motion To Allow 

Discovery Regarding Respondents’ Agreements With Ubisoft Entertainment SA And Sony 

Interactive Entertainment LLC (Oct. 26, 2023) (“Oct. 26, 2023 Order”). 

Microsoft understood the Oct. 26, 2023 Order to place outer limits on Complaint Counsel’s 

ability to take discovery on these agreements out of time and timely filed a motion to certify a 

request for the Commission to enforce a subpoena duces tecum on Sony regarding the Sony 

Agreement on December 21, 2023 (“Microsoft’s Motion to Certify”). However, on January 8, 

2024, the Court denied Microsoft’s Motion to Certify (“Jan. 8, 2024 Order”), explaining that the

Oct. 26, 2023 Order only authorized Complaint Counsel to serve discovery. As a result, Microsoft 

has not had the opportunity to take proportional discovery limited to the issues reopened by 

Complaint Counsel. 

Shortly thereafter, on January 11, 2024, Microsoft informed Complaint Counsel that it 

intended to move to reopen discovery for the limited purpose of serving subpoenas ad 

testificandum on Ubisoft and Sony. See Ex. A, Declaration of Kieran Gostin ¶ 9 (Jan. 16, 2024) 

(“Gostin Decl.”). The parties met and conferred on January 12, 2024. Id. ¶ 10. Complaint Counsel 

notified Microsoft on January 16, 2024, that they would oppose, and Microsoft filed this motion 

later the same day. See id. ¶ 11. 

In providing notice that they intend to oppose the instant motion, Complaint Counsel 

shared their view that Microsoft is filing this motion to deprive Complaint Counsel of deposition 

time. See Ex. B, Email from Complaint Counsel to Respondent Microsoft (Jan. 16, 2024). That is 

untrue. As undersigned counsel explained in responding to Complaint Counsel, Microsoft’s goal 

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is to ensure Microsoft has sufficient time to question Sony and Ubisoft witnesses on, among other 

topics, the negotiations over the respective agreements; the financial and other impact of the 

agreements; how the agreements are being implemented by the third parties; and the third parties’ 

understanding of the terms of the agreement. See id. Contrary to Complaint Counsel’s view, 

Microsoft intends to use the full time allotted to Microsoft. Nevertheless, in an effort to obtain 

Complaint Counsel’s consent to the relief requested in this motion, Microsoft agreed to forfeit 

unused time (if any) to Complaint Counsel, despite no provision for such reversion in the 

Scheduling Order, and even though Microsoft is unaware of any precedent for such an offer. Id. 

Complaint Counsel rejected the proposal. See id.

Granting Microsoft’s motion would not delay the evidentiary hearing in this matter, given 

that it will not start prior to twenty-one days after the disposition of the appeal before the Ninth 

Circuit. Furthermore, there has been discussion about an Ubisoft deposition on January 31, but 

that date has not been finalized. The Sony deposition is scheduled to take place on February 8. 

Microsoft only seeks the opportunity to serve its own subpoenas on Sony and Ubisoft so that it 

can question those witnesses ahead of the hearing. 

In addition to granting Complaint Counsel’s motion to reopen discovery related to the Sony 

and Ubisoft Agreement, the Court previously granted: the parties’ joint request to extend the 

deadline for final exhibit lists by one week, see Order Granting Joint Motion For First Revised 

Scheduling Order at 1 (May 12, 2023); Respondents’ request to revise the scheduling order, see

Order Granting Respondents’ Motion For Second Revised Scheduling Order at 1 (June 29, 2023); 

and the parties’ joint motion to revise the remaining deadlines, see Order Granting Joint Motion 

For Third Revised Scheduling Order at 1 (Dec. 15, 2023). 

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MEMORANDUM IN SUPPORT OF RESPONDENT MICROSOFT CORPORATION’S

MOTION TO REOPEN DISCOVERY FOR THE LIMITED PURPOSE OF SERVING 

SUBPOENAS AD TESTIFICANDUM ON UBISOFT ENTERTAINMENT SA AND SONY

INTERACTIVE ENTERTAINMENT LLC

Respondent Microsoft respectfully moves to reopen discovery for the limited purpose of 

serving subpoenas ad testificandum on Ubisoft and Sony about the Ubisoft Agreements and Sony 

Agreement, respectively. Discovery may be allowed after the discovery deadline has passed, 

provided there is good cause to do so. See In re LabMD, Inc., No. 9357, 2014 FTC LEXIS 307, 

at *9 (F.T.C. Dec. 8, 2014) (granting in part Complaint Counsel’s motion to reopen discovery to 

allow limited deposition of defense witness in advance of testimony in order to advance public 

interest in effective cross-examination); Oct. 26, 2023 Order at 2–3; see also FTC Rule 3.21(c)(2), 

16 C.F.R. § 3.21(c)(2) (permitting the Administrative Law Judge to extend any deadline or time 

specified in a scheduling order for good cause). Good cause exists here for several reasons. 

First, as the Court has noted, “there is no dispute as to the relevance of the [Sony 

Agreement and Ubisoft Agreements], given that Microsoft intends to offer the agreements into 

evidence at the evidentiary hearing to support its defense.” Order Denying Motion of Respondent 

Microsoft Corp. to Certify Request for Court Enforcement of Subpoena Duces Tecum (Jan. 8, 

2023) (“Jan. 8, 2023 Order”). While Microsoft opposed Complaint Counsel’s motion to reopen 

discovery into these agreements, it did not oppose some additional discovery, arguing instead that 

“[t]he discovery plan presented by Complain Counsel is not appropriately limited or tailored.” Oct. 

26, 2023 Order at 2. 

Second, as a matter of fairness, Microsoft should be entitled to conduct discovery to address 

any concerns about the Ubisoft and Sony Agreements raised by Complaint Counsel. When one 

party is granted to leave to reopen discovery into an issue, it would be “unjust” not to allow 

discovery by the opposing party “within the same boundaries [previously] granted.” Stuart Title 

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Guar. Co. v. Credit Suisse, No. 1:11-cv-00227-BLW, 2015 U.S. Dist. LEXIS 44237, at *4–6 

(D. Idaho Mar. 31, 2015) (finding “nothing illegitimate” about opposing discovery and 

subsequently requesting to conduct reciprocal discovery when discovery was reopened).

Complaint Counsel, in its motion to reopen discovery, indicated that it intends to attempt to rebut 

Microsoft’s assertions that the agreements mitigate any purported anticompetitive harm of the 

merger. See Oct. 10, 2023 Motion at 7–8. And, in prior cases, the Commission has closely 

analyzed the adequacy of relevant agreements in merger cases. See generally In the Matter of 

Illumina, Inc., No. 9401, 2023 FTC LEXIS 43 (F.T.C. Mar. 31, 2023). While Microsoft has 

previously argued (and continues to maintain) that the Ubisoft and Sony Agreements speak for 

themselves, Microsoft should still be entitled to seek balanced discovery so that it can counter any 

suggestion that the agreements are inadequate.

Third, Microsoft could not previously seek this discovery because the Ubisoft and Sony

Agreements were not executed until after the prior discovery deadline. Microsoft respectfully asks 

the Court to excuse their misreading of the Court’s October 26 Order reopening discovery. 

Microsoft acknowledges that the October 26 Order states “that Complaint Counsel is granted leave 

to serve . . . subpoenas . . . ad testificandum for the purpose of taking discovery relevant to the 

Ubisoft Agreement and the Sony Agreement.” Oct. 26, 2023 Order at 4. But Microsoft understood 

this statement to relate to the limitations on the amount of discovery Complaint Counsel could 

seek, which was the focus of the parties’ dispute, and not to prevent Microsoft from seeking 

corresponding discovery. 

Fourth, reopening discovery for the limited purpose of serving subpoenas ad testificandum

will not delay the evidentiary hearing in this matter or the depositions. The evidentiary hearing is 

not scheduled to occur until twenty-one days after the disposition of the appeal before the Ninth 

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Circuit. Order Granting Joint Motion for Third Revised Scheduling Order at 1 (Dec. 15, 2023). 

Complaint Counsel has already served subpoenas ad testificandum on Ubisoft and Sony. Microsoft

understands that the dates for those depositions have not been finalized, but the Ubisoft deposition 

is expected to occur on January 31 and the Sony deposition is expected to occur on February 8. 

Microsoft only seeks the opportunity to serve its own subpoenas on Sony and Ubisoft so that it 

can question those witnesses ahead of the hearing. 

For the foregoing reasons, Microsoft respectfully asks the Court to grant it permission to 

serve subpoenas ad testificandum on Ubisoft and Sony and to take discovery related to the Ubisoft 

and Sony Agreements.

Dated: January 16, 2024 Respectfully submitted,

By: /s/ Beth Wilkinson

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

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2001 M Street NW

Suite 600 

Washington, DC 20036 

(202) 682-7026

michael.moiseyev@weil.com

megan.granger@weil.com

 Counsel for Microsoft Corp.

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CERTIFICATE OF SERVICE

I hereby certify that on January 16, 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

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/s/ Beth Wilkinson

Beth Wilkinson 

Counsel for Microsoft Corp. 

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UNITED STATES OF AMERICA 

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 

[PROPOSED] ORDER GRANTING RESPONDENT MICROSOFT CORPORATION’S 

MOTION TO REOPEN DISCOVERY FOR THE LIMITED PURPOSE OF SERVING 

SUBPOENAS AD TESTIFICANDUM ON UBISOFT ENTERTAINMENT SA AND SONY 

INTERACTIVE ENTERTAINMENT LLC

Upon consideration of Respondent Microsoft’s Motion to Reopen Discovery for the 

Limited Purpose of Serving Subpoenas Ad Testificandum on Ubisoft Entertainment SA

(“Ubisoft”) and Sony Interactive Entertainment LLC (“Sony”), IT IS HEREBY ORDERED 

THAT:

Respondent Microsoft’s motion is GRANTED; and 

Respondent Microsoft is granted leave to serve subpoenas ad testificandum for the purpose 

of taking discovery related to the Ubisoft and Sony agreements. 

SO ORDERED:

______________________________________

D. Michael Chappell

Chief Administrative Law Judge

Date: 

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EXHIBIT A 

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

Microsoft Corp., 

a corporation, 

and 

Activision Blizzard, Inc., 

a corporation. 

Docket No. 9412 

DECLARATION OF KIERAN GOSTIN IN SUPPORT OF RESPONDENT 

MICROSOFT’S MOTION TO REOPEN DISCOVERY FOR THE LIMITED PURPOSE 

OF SERVING SUBPOENAS AD TESTIFICANDUM ON UBISOFT ENTERTAINMENT 

SA AND SONY INTERACTIVE ENTERTAINMENT LLC

I, Kieran Gostin, hereby declare under penalty of perjury that the following is true and 

correct: 

1. I am a partner at Wilkinson Stekloff LLP and am counsel for Respondent Microsoft 

Corporation (“Microsoft”) in the above-captioned matter. I submit this declaration in support of 

Respondents’ Motion to Reopen Discovery For the Limited Purpose of Serving Subpoenas Ad 

Testificandum on Ubisoft Entertainment SA (“Ubisoft”) And Sony Interactive Entertainment LLC

(“Sony”). In my role, I have personal knowledge of certain issues related to the Federal Trade 

Commission’s (“FTC” or the “Commission”) investigation of the transaction between Microsoft 

and Activision Blizzard, Inc. (“Activision”), as well as the discovery and progression of litigation 

in this matter as Microsoft’s counsel. 

2. I have read and am familiar with the Court’s Order on Complaint Counsel’s Motion 

To Allow Discovery Regarding Respondents’ Agreements With Ubisoft Entertainment SA And 

Sony Interactive Entertainment LLC (the “Oct. 26, 2023 Order”). 

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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 October 10, 2023, Complaint Counsel moved to reopen discovery on the 

Ubisoft and Sony Agreements. See Complaint Counsel’s Motion to Extend Fact Discovery To 

Allow Discovery Regarding Respondents’ Agreements With Ubisoft Entertainment SA And Sony 

Interactive Entertainment LLC (the “Oct. 10, 2023 Motion”). 

5. On October 26, 2023, the Commission ordered that Complaint Counsel was granted 

leave to serve subpoenas ad testificandum relating to the Ubisoft and Sony Agreements. Oct. 26, 

2023 Order at 4. The Oct. 26, 2023 Order also reopened discovery for an eight-week period, ending 

on December 21, 2023. Id.

6. On December 21, 2023, Microsoft filed a motion to certify a request for the 

Commission’s enforcement of a subpoena duces tecum on Sony regarding the Sony Agreement

(the “Microsoft’s Motion to Certify”). 

7. On January 2, 2024, Sony opposed Microsoft’s Motion to Certify. On January 4, 

2024, Complaint Counsel filed a motion for leave to file an opposition to Microsoft’s Motion to 

Certify. 

8. On January 8, 2024, the Court denied Microsoft’s Motion to Certify. 

9. On January 11, 2024, Microsoft notified Complaint Counsel that it intended to seek 

permission from the Court to issue subpoenas ad testificandum on Sony and Ubisoft related to the 

relevant agreements. 

10. On January 12, 2024, the parties met and conferred via video conference.

Complaint Counsel has confirmed that there has been discussion about an Ubisoft deposition on 

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January 31, but that date has not been finalized. The Sony deposition is scheduled to take place on 

February 8. 

11. On January 16, 2024, Complaint Counsel notified counsel for Microsoft that they 

intended to oppose this motion. In an effort to obtain Complaint Counsel’s consent to the relief 

requested in the corresponding motion, Microsoft agreed to forfeit unused time (if any) to 

Complaint Counsel. Complaint Counsel rejected the proposal. 

I declare under penalty of perjury that the foregoing is true and correct. 

Executed this 16 day of January, 2024, in Washington, D.C. 

/s/Kieran Gostin

Kieran Gostin

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EXHIBIT B 

CONFIDENTIAL 

REDACTED IN ENTIRETY 

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