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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corporation, 

a corporation, 

and 

Activision Blizzard, Inc., 

a corporation. 

 Docket No. 9412 

COMPLAINT COUNSEL’S MOTION TO COMPEL 

MICROSOFT CORPORATION AND ACTIVISION BLIZZARD, INC. 

TO PRODUCE DOCUMENTS 

Pursuant to Administrative Rule 3.38(a), Complaint Counsel respectfully moves the 

Court for an order compelling Respondents Microsoft Corporation and Activision Blizzard, Inc. 

(collectively, “Respondents”) to conduct a reasonable search for, and produce in timely fashion, 

documents responsive to Request Nos. 1, 3, 6, 11, and 16 and Request Nos. 1, 2, 5, 7, and 8 in 

Complaint Counsel’s Second Set of Requests for Production to Respondents, respectively (the 

“RFPs”). 
 

 

 

 

 

 

 

 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corporation, 

a corporation, Docket No. 9412 

and 

Activision Blizzard, Inc., 

a corporation. 

COMPLAINT COUNSEL’S MEMORANDUM IN SUPPORT OF ITS MOTION TO 

COMPEL PRODUCTION OF DOCUMENTS FROM RESPONDENTS 

Microsoft Corporation, a global technology company that owns: (a) the Xbox gaming 

console, (b) Game Pass, the fastest growing game subscription service, (c) xCloud, the largest 

cloud gaming service, and (d) twenty-three game development studios that make some of the 

world’s most popular games (including Halo and Minecraft), now proposes to acquire Activision 

Blizzard, Inc., one of the most important publishers of video game content, for approximately 

$70 billion (the “Proposed Transaction”). More than five weeks after receiving thirty-two 

document requests (the “RFPs”), Respondents have produced only a smattering of self-selected 

documents in response and have refused to produce anything at all for twenty-four requests. 

This is not for lack of extensive efforts by Complaint Counsel to reach a compromise 

where possible, including holding six separate meet and confers (“M&Cs”),1

 engaging in 

1 See Statement Regarding Meet and Confer Pursuant to 16 C.F.R. § 3.22(g) (“Meet & Confer Statement”). 

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extensive correspondence with Respondents,2 and identifying priority requests. Respondents 

have offered a hodgepodge of unavailing arguments: that the RFPs are overly broad and 

burdensome; that the RFPs are duplicative of the Second Request specifications; and that they 

already produced a large volume of documents in response to the Second Request and in their 

refresh of that Second Request production.3 

Now, Respondents assert that there is “simply not enough time” for them to produce the 

requested documents.4

 Respondents cannot complain of having too little time after proposing an 

expedited discovery schedule that has fact discovery set to close on April 7 and a hearing date of 

August 2, 2023.5

 Complaint Counsel respectfully moves the Court to compel Respondents to 

immediately produce documents in response to the limited set of RFPs set forth below. 

ARGUMENT 

Rule 3.31(c)(1) provides “[p]arties 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.” When a party fails to comply with its 

discovery obligations, a motion to compel under Rule 3.38(a) is appropriate. See also Rule 

2 See Exhibit M, Letter from N. Callan to G. Hill (Feb. 16, 2023), and Exhibits F to T (correspondence among the 

parties). 

3 Microsoft produced approximately 2.15 million documents during the Second Request, and approximately 480,000 

documents in its refresh production. Activision produced approximately 892,000 documents during the Second 

Request and approximately 118,000 documents in its refresh production. Respondents have repeatedly cited the raw 

number of documents and/or pages produced during the investigation to claim they have satisfied all discovery 

obligations, ignoring the simple fact that Complaint Counsel is entitled to discovery of relevant materials that have 

not been produced. See In re Sysco Corp., 2015 WL 3897396 (June 17, 2015) (ordering the production of documents 

by Respondents in the Part III administrative hearing, despite discovery in the parallel federal proceeding having 

already taken place). At the start of this litigation, Complaint Counsel accepted Respondents’ proposal for a 

voluntary refresh based on assurances that Respondents would not seek to prevent Complaint Counsel from 

requesting formal discovery during litigation. Complaint Counsel’s review of the investigative record guided the 

drafting of the RFPs. The instructions to the RFPs state that Respondents do not need to produce documents that 

were already produced during the investigation. Respondents should have conducted a diligent search for each RFP; 

instead, they caused weeks of delay, argued over each and every RFP, and ultimately agreed only to limited go-gets 

for a handful of RFPs. 4 See, e.g., Meet & Confer Statement; Exhibit P, Letter from B. Pierson to N. Callan at 2 (Feb. 23, 2023). 5 See Scheduling Order at 4. 

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3.37(b). The Court will limit discovery only “if the discovery sought is unreasonably cumulative 

or duplicative, or is obtainable from some other source that is more convenient, less burdensome, 

or less expensive; or if the burden and expense of the proposed discovery outweigh its likely 

benefit.” In re Daniel Chapter One, A Corp., & James Feijo, Respondents, No. 9329, 2009 WL 

569694, at *2 (F.T.C. Jan. 9, 2009). Importantly, “[p]arties resisting discovery of relevant 

information carry a heavy burden of showing why discovery should be denied.” In re Intuit, Inc., 

No. 9408, 2022 WL 18389914, at *2 (F.T.C. Dec. 30, 2022) (quoting In re Daniel Chapter One, 

supra). As explained below, the discovery sought is highly probative of the issues in this case, 

and Respondents cannot justify their failure to produce responsive documents. 

I. Respondents Should Produce Relevant Post-Complaint Documents 

Respondents refuse to produce relevant documents created after the Complaint was filed 

on December 8, 2022. Respondents’ refusal includes, for example, Microsoft’s internal 

documents and correspondence related to ongoing negotiations with key third parties and 

submissions to regulators. Complaint Counsel has requested post-Complaint documents for a 

reasonable period of time—proposing a cutoff four weeks before the close of fact discovery. In 

the alternative, Complaint Counsel offered Respondents a reciprocal agreement not to rely on 

evidence dated after December 8, 2022. Respondents declined both offers. Instead, Microsoft has 

chosen a self-serving approach to discovery by which Respondents get to choose what is 

“relevant” to this matter.

6

 This position is untenable. For example, Microsoft recently produced a 

set of agreements with certain third parties that would make Activision content available on their 

services post-transaction and agreed to produce some external communications regarding these 

6 Respondents’ inequitable view of discovery includes seeking documents from Complaint Counsel past the date of 

the Complaint to the present. Exhibit U, Resp. Microsoft Corp.’s First Set of Reqs. for Prod. to Complaint Counsel 

at 7; Exhibit V, Resp. Activision Blizzard, Inc.’s First Set of Reqs. for Prod. to Complainant Federal Trade 

Commission at 18. 

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agreements, but Microsoft will not produce external communications or proposals sent to other 

third parties and will not produce any internal documents related to any agreements or proposed 

agreements.7 This approach prejudices Complaint Counsel, including most immediately by 

hampering Complaint Counsel’s ability to prepare for depositions that are already underway. 

Complaint Counsel respectfully moves the Court to order Respondents to produce 

documents responsive to the RFPs referenced herein through February 28, 2023. 

II. Respondents Should Search for and Produce Documents Responsive to 

Complaint Counsel’s RFPs 

Respondents pointed to the volume of documents produced in the investigation as 

evidence that they have produced “enough” documents and should not be required to conduct 

diligent searches specifically in response to Complaint Counsel’s RFPs. Respondents have 

repeatedly asserted that Complaint Counsel has not identified with sufficient specificity what is 

left to be produced. This assertion is false. Complaint Counsel has discussed each RFP in detail 

with Respondents, proposed specific search terms,8 and even cited specific file names of 

responsive documents that have not been produced. To support their baseless assertion that 

Respondents do not know what is “missing” from prior productions, Respondents have ignored 

the date issue described above and searched documents they have already produced to suggest 

they have already “fully” responded to the RFPs. By this logic, there is no request for documents 

Complaint Counsel could write that Respondents would be obligated to respond to. 

For each RFP described below, Complaint Counsel respectfully moves the Court to order 

Respondents to produce documents in accordance with the proposal attached as Exhibit A. 

7 See infra. § II.A (RFP 16). 8 Microsoft has argued that running any set of search terms would be burdensome after using Technology Assisted 

Review (“TAR”) for the investigation. Complaint Counsel does not oppose the use of TAR to respond to the RFPs. 

After Microsoft refused to revisit updating TAR for this litigation, Complaint Counsel proposed a limited, concrete 

set of search terms in an effort to reach a compromise. See Exhibit M, Letter from N. Callan to G. Hill, Appendix A 

(Feb. 16, 2023). Microsoft rejected this approach as well. 

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A. Microsoft should produce documents responsive to the following RFPs 

RFP 1 requests materials sent to { 

}. The { } 

regularly reviews white papers, presentations, and discussion documents that are relevant to this 

litigation. Microsoft has taken the position that it has “fully satisfied” this request, even though 

Complaint Counsel has also identified specific file names of documents that have not been 

produced in the 2019 to 2022 time period. Microsoft agreed only to produce responsive 

documents and previously withheld videos from central Teams sites used by the { }, but 

declined to produce any documents created after December 8, despite the fact that { } 

meetings discussing, for instance, { 

}. Complaint Counsel identified specific steps Microsoft could take to 

identify further responsive documents that have not been produced, with minimal burden. For 

example, Complaint Counsel explained that Microsoft could easily identify responsive 

documents sent to the { } that have not been produced by searching for emails sent to 

{ }, a dedicated email address for circulating materials to the { }. 

Microsoft refused. 

RFP 3 requests documents related to cross-play, i.e., features that enable gamers to play a 

game together across different companies’ products. For example, cross-play enables gamers 

playing Call of Duty on Microsoft Xbox to play with gamers playing Call of Duty on Sony 

PlayStation. { 

} Microsoft made a 

similar argument when it acquired ZeniMax, but subsequently decided to take newly-acquired 

ZeniMax titles exclusive. See Compl. ¶ 12. In response to this RFP, Microsoft asserted that the 

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Second Request productions cover this request, but took no steps to confirm. In fact, the Second 

Request did not include a Specification related to cross-play. Microsoft effectively conceded the 

relevance of this topic when it requested documents relating to cross-play from a third party in 

this litigation.9

 Microsoft’s contradictory position is that it can seek relevant documents on this 

topic from a third party while avoiding similar discovery from its own files. 

RFP 6 requests documents related to { }, the code name for 

Microsoft’s next generation gaming ecosystem. { } is part of Microsoft’s 

forward-looking strategy for its console, subscription, and cloud gaming businesses—all markets 

in which Complaint Counsel alleges harm. { 

}, after the Second Request was issued and after Microsoft’s 

TAR had been trained to identify responsive documents.10 Complaint Counsel proposed search 

terms that would identify documents responsive to this RFP that have not been produced and 

identified the file names of multiple documents referenced in the production set that were not 

identified by the TAR and were not produced in response to the Second Request (e.g., { 

}). Microsoft refused any approach that would require it to produce new 

responsive documents. 

RFP 11 requests all documents related to exclusivity of content Microsoft acquired from 

ZeniMax and exclusivity of content Microsoft proposes to acquire from Activision. In addition to 

post-Complaint documents Microsoft refuses to produce, Complaint Counsel does not have a 

complete set of relevant documents from the time period covered by the investigation. To cite 

9 Exhibit W, Microsoft’s Subpoena for Production of Documentary Material issued to Sony Interactive 

Entertainment LLC on January 13, 2023 (Request No. 32 seeking documents regarding cross-play). 10 See, e.g., { } 

6 
 

 

 

 

 

PUBLIC

one example, { 

} Microsoft has not produced the 

{ } document. Complaint Counsel has proposed search terms aimed at 

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identifying this and other relevant documents, including by using specific titles that Microsoft 

has made exclusive or has considered making exclusive. Microsoft has refused any approach that 

would require it to produce new responsive documents. 

RFP 16 requests all documents related to making Activision content available on 

competing products and services after the Proposed Transaction closes. As discussed infra at 

Section I, Microsoft has recently sought to enter into agreements regarding making Activision 

content available on certain third parties’ services. Despite clearly intending to use these 

agreements in its defense, Microsoft has refused to produce underlying internal documents 

related to these agreements, or communications with third parties other than Nvidia, Nintendo, 

and Sony. Microsoft should be not permitted to introduce or rely on these agreements without 

producing the requested underlying discovery. 

B. Activision should produce documents responsive to the following RFPs 

RFP 1 requests documents related to gaming consumer preferences, factors affecting 

consumer purchase decisions, and consumer willingness to switch from one gaming console to 

another. As a compromise, Complaint Counsel offered to limit its request to documents dated 

January 1, 2020 through February 28, 2023, and asked only for responsive studies and reports 

from the files of the three employees Respondents named as “oversee[ing] direct access to these 

types of materials,” as well as any studies and reports conducted or commissioned by { 

7 
 

 

 

 

 

 

 

 

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} Activision’s in-house marketing group. Activision refuses to produce any more than 

a set of documents it cherry-picked to support its advocacy to a foreign regulator. 

RFP 2 requests documents related to the relevance of cross-play,11 which was missing 

from the search terms Activision used during the investigation. Activision refused Complaint 

Counsel’s request to run a search for the term “cross-play” in the documents Activision has 

already collected. 

RFPs 5 and 7 respectively request documents related to offering Activision on 

subscription services and cloud gaming services, including services from Nvidia (GeForce 

NOW), Nintendo (Nintendo Switch Online or NSO), Google (Stadia), and Amazon (Luna) and 

request documents related to offering Activision games on Nintendo devices. Even after 

identifying examples of relevant terms missing from Activision’s search term list, including, for 

example, “GeForce NOW” and “NSO,” Activision refused to consider adding any additional 

search terms. 

RFP 8 requests documents relating to purported cannibalization of purchased games 

(“buy-to-play”) by subscription services and whether consumer behavior differs between buy-toplay users and subscription service users. Even after Complaint Counsel pointed out that 

“cannibalization” was missing from Activision’s search terms during the investigation, 

Activision refused to search its documents using this one term. 

CONCLUSION 

For the foregoing reasons, this Court should grant Complaint Counsel's motion to compel 

the production of documents. 

11 See supra. § II.A (RFP 3). 

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Dated: March 14, 2023 Respectfully submitted, 

By: s/ James H. Weingarten 

James H. Weingarten 

Taylor Alexander 

Nicole Callan 

Maria Cirincione 

Kassandra DiPietro 

Jennifer Fleury

 Edmund Saw 

Federal Trade Commission

 600 Pennsylvania Ave., NW

 Washington, DC 20580 

 Telephone: (202) 326-3570 

Email: jweingarten@ftc.gov

 Counsel Supporting the Complaint 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corporation, 

a corporation, Docket No. 9412 

and 

Activision Blizzard, Inc., 

a corporation. 

STATEMENT REGARDING MEET AND CONFER PURSUANT TO 16 C.F.R. § 3.22(g) 

Complaint Counsel respectfully submits this Statement, pursuant to Rule 3.22(g) of the 

Federal Trade Commission’s Rules of Adjudicative Practice and Paragraph 4 of the Scheduling 

Order. 

Complaint Counsel has attempted to confer in good faith with counsel for Respondents 

Microsoft Corp. (“Microsoft”) and Activision Blizzard, Inc. (“Activision”) in an effort to obtain 

the documents requested in Complaint Counsel’s Second Set of Requests for Production (the 

“RFPs”) on a timely basis without the Court’s intervention. 

On January 27, 2023, Complaint Counsel served on Respondents its Second Set of RFPs. 

Exhibits B and C. On February 3, 2023, Respondents delivered written Responses and 

Objections (“R&Os”) to Complaint Counsel. Complaint Counsel (Nicole Callan, Maria 

Cirincione, and Jennifer Fleury) then had an initial meet and confer (“M&C”) via 

videoconference with Respondents’ Counsel (Grace Hill, Robert Keeling, and Alysha Bohanon 

for Microsoft, and Julia York, Michael Sheerin and Bradley Pierson for Activision) on February 

8, 2023 at 3:00 PM to discuss Respondents’ R&Os. 
 

 

 

 

 

 

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Since then, the parties have had numerous additional M&Cs to discuss the RFPs via 

videoconference. On February 10, 2023 at 5:00 PM, Complaint Counsel (Jennifer Fleury and 

Nicole Callan) met with Respondents’ Counsel (Grace Hill and Robert Keeling for Microsoft, 

and Julia York, Michael Sheerin and Bradley Pierson for Activision). On February 13, 2023 at 

11:00 AM, Complaint Counsel (Nicole Callan and Jennifer Fleury) again met with Respondents’ 

Counsel (Grace Hill and Robert Keeling for Microsoft, and Julia York, Bradley Pierson and 

Andrew Kabbes for Activision). 

On February 15, 2023 at 1:00 PM, the parties had a M&C on Complaint Counsel’s First 

Set of Requests for Production (the “data RFPs”), during which Complaint Counsel (Jennifer 

Fleury and Nicole Callan) and Microsoft’s Counsel (Grace Hill and Robert Keeling for 

Microsoft) also briefly discussed the document RFPs. On February 24, 2023 at 10:00 AM, 

Complaint Counsel (Jennifer Fleury and Nicole Callan) again met with Respondents’ Counsel 

(Grace Hill and Robert Keeling for Microsoft, and Bradley Pierson for Activision). Complaint 

Counsel has also exchanged letters and numerous emails with Respondents. 

During a regularly scheduled weekly meeting amongst the parties on February 27, 2023 

at 4:30 PM, Complaint Counsel (Jennifer Fleury) raised to Counsel for Respondents (Julia York 

for Activision, and Beth Wilkinson and Grace Hill for Microsoft) that Complaint Counsel 

believed the parties were nearing impasse regarding several of the RFPs.1

 Following this 

meeting, Complaint Counsel (Jennifer Fleury) sent an email to Respondents’ Counsel (including 

Grace Hill and Robert Keeling for Microsoft, and Julia York for Activision) on February 28, 

2023 Exhibit Q, stating that Complaint Counsel was considering filing a motion to compel on 

1 In an effort to reach a compromise, Complaint Counsel identified a set of priority RFPs by email on February 8. 

Exhibit I, at 8–9. 
 

 

 

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specific priority requests given the outstanding issues, and Complaint Counsel asked whether 

Respondents had reconsidered their positions on any of these priority requests. 

Respondent Microsoft’s Counsel (Grace Hill) replied to this email seeking another M&C 

on the outstanding RFPs Exhibit R, at 4. Complaint Counsel and Respondents then had a M&C 

on March 1, 2023 at 3:30 PM. At this M&C, Complaint Counsel and Respondent Microsoft 

came to agreement on two RFPs, Nos. 12 and 19. This understanding was memorialized in 

emails between Complaint Counsel (Jennifer Fleury) and Respondent Microsoft’s Counsel 

(Grace Hill) Exhibit T, at 1. Complaint Counsel and Microsoft remain at impasse on RFPs 1, 3, 

6, 11, and 16. Complaint Counsel and Respondent Activision remain at impasse on RFPs 1, 2, 5, 

7, and 8. 

Dated: March 14, 2023 Respectfully submitted, 

By: s/ James H. Weingarten 

James H. Weingarten 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-3570 

Email: jweingarten@ftc.gov 

Counsel Supporting the Complaint 
 

 

 

 

 ______________________________ 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/14/2023 | Document No. 607214 | PAGE Page 14 of 39 * PUBLIC *; 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corporation, 

a corporation, 

and 

Activision Blizzard, Inc., 

a corporation. 

 Docket No. 9412 

[PROPOSED] ORDER 

Upon consideration of Complaint Counsel’s Motion to Compel Microsoft Corp. 

(“Microsoft”) and Activision Blizzard, Inc. (“Activision”) (collectively, The “Respondents”) to 

Produce Documents Requested by Complaint Counsel’s Second Set of Requests for Production 

of Documents, and any opposition thereto, 

IT IS HEREBY ORDERED that Complaint Counsel’s Motion is GRANTED. 

IT IS FURTHER ORDERED that Respondents shall immediately run the searches 

attached to Complaint Counsel’s Motion to Compel as Exhibit A and otherwise take all 

necessary steps towards producing to Complaint Counsel all requested documents responsive to 

Request Nos. 1, 3, 6, 11, and 16 to Respondent Microsoft, and Request Nos. 1, 2, 5, 7, and 8 to 

Respondent Activision from Complaint Counsel’s Second Set of Requests for Production of 

Documents issued on January 27, 2023 within 21 days from the issuance of this Order. 

D. Michael Chappell 

Chief Administrative Law Judge 

DATED this ___ day of March, 2023 
 

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Exhibit A 

CONFIDENTIAL - REDACTED IN ENTIRETY 
 

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Exhibit B 

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Exhibit C 

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Exhibit D 

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Exhibit E 

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Exhibit F 

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Exhibit G 

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Exhibit H 

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Exhibit I 

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Exhibit J 

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Exhibit K 

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Exhibit L 

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Exhibit M 

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Exhibit N 

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Exhibit O 

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Exhibit P 

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Exhibit Q 

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Exhibit R 

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Exhibit S 

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Exhibit T 

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Exhibit U 

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Exhibit V 

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Exhibit W 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 14, 2023, 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 Steven Sunshine 

Rakesh Kilaru Julia K. York 

Alysha Bohanon Jessica R.Watters 

Anastasia Pastan Skadden, Arps, Slate, Meagher & Flom LLP 

Grace Hill 1440 New York Ave, NW 

Sarah Neuman Washington, DC 20005 

Kieran Gostin (202) 371-7860 

Wilkinson Stekloff LLP steve.sunshine@skadden.com 

2001 M Street, NW julia.york@skadden.com 

Washington, DC 20036 jessica.watters@skadden.com 

(202) 847-4010 

bwilkinson@wilkinsonstekloff.com Maria Raptis 

rkilaru@wilkinsonstekloff.com Matthew M. Martino 

abohanon@wilkinsonstekloff.com Michael Sheerin 

apastan@wilkinsonstekloff.com Evan R. Kreiner 

ghill@wilkinsonstekloff.com Andrew D. Kabbes 

sneuman@wilkinsonstekloff.com Bradley J. Pierson 

kgostin@wilkinsonstekloff.com Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West 

Mike Moiseyev New York, NY 10001 

Megan Granger (212) 735-2425 

Weil, Gotshal & Manges LLP maria.raptis@skadden.com 

2001 M Street, NW matthew.martino@skadden.com 

Washington, DC 20036 michael.sheerin@skadden.com 

(202) 682-7235 evan.kreiner@skadden.com 

michael.moiseyev@weil.com andrew.kabbes@skadden.com 
 

 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/14/2023 | Document No. 607214 | PAGE Page 39 of 39 * PUBLIC *; PUBLIC

megan.granger@weil.com 

Counsel for Microsoft Corporation 

bradley.pierson@skadden.com 

Counsel for Activision Blizzard, Inc. 

By: s/ James H. Weingarten 

James H. Weingarten 

Counsel Supporting the Complaint