FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/21/2023| Document No. 607274 | PAGE Page 1 of 5 * PUBLIC *; 

__________________________________________ 

PUBLIC 

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 COMPLAINT COUNSEL’S MOTION 

TO COMPEL PRODUCTION OF DOCUMENTS 

I. 

On March 8, 2023, Federal Trade Commission (“FTC” or “Commission”) Complaint 

Counsel filed a Motion to Compel Respondents Microsoft Corp. (“Microsoft”) and Activision 

Blizzard, Inc. (“Activision”) to Produce Documents (“Motion”). Specifically, Complaint 

Counsel seeks an order (a) compelling Microsoft to comply with Requests 1, 3, 6, 11, and 16 of 

its Second Set of Requests for Production of Documents “(RFPs”) directed to Microsoft 

(“Microsoft RFPs”) and (b) compelling Activision to comply with Requests 1, 2, 5, 7, and 8 of 

Complaint Counsel’s Second Set of Requests for Production of Documents directed to Activision 

(“Activision RFPs”). On March 15, 2023, Microsoft and Activision filed their joint opposition to 

the Motion (“Opposition”). For the reasons set forth below, Complaint Counsel’s Motion is 

GRANTED IN PART and DENIED IN PART. 

II. 

Pursuant to Commission Rule 3.31(c)(1): “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). Discovery 

shall be limited if the Administrative Law Judge determines that it is “unreasonably cumulative 

or duplicative,” or the “burden and expense of the proposed discovery . . . outweigh its likely 

benefit.” 16 C.F.R. § 3.31(c)(2)(i), (iii). “Unless the Administrative Law Judge determines that 

the objection is justified, the Administrative Law Judge shall order that an initial disclosure or an 

answer to any requests for admissions, documents, depositions, or interrogatories be served or 

disclosure otherwise be made.” 16 C.F.R. § 3.38(a). Under Rule 3.31(c)(4), which specifically 

governs motions to compel, “[d]iscovery shall be denied or limited in order to preserve the 

privilege of a witness, person, or governmental agency . . . .” 16 C.F.R. § 3.31(c)(4). 
 

 

 

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In the instant dispute, Respondents do not object to the requests on the basis of relevance. 

Rather, both Microsoft and Activision resist discovery on the grounds that the requested 

discovery is duplicative and/or unduly burdensome, as more fully explained below. 

III. 

A. Common Objections by Microsoft and Activision 

Microsoft and Activision both object to searching for or producing documents in 

response to Complaint Counsel’s RFPs on the grounds that the RFPs seek documents that are 

duplicative of documents requested and produced during the precomplaint investigative phase of 

this matter (the “Second Request Specifications”). At the outset, the fact that similar document 

requests may have been issued during an investigation does not prevent Complaint Counsel from 

exercising the right to take discovery in litigation, nor necessarily relieve a litigant from 

responding to discovery in litigation. In re Polypore Int'l, No. 9327, 2008 FTC LEXIS 155 at *8-

13 (F.T.C. Nov. 14, 2008) (denying motion to preclude complaint counsel from taking 

depositions of witnesses who had been examined during the pre-complaint investigation); In re 

All-State Indus., of N.C., Inc., et al., No. 8372, 1967 FTC LEXIS 159, at *6-10 (F.T.C. Nov. 13, 

1967) (holding that while the Commission’s rules of practice “provide for comprehensive 

precomplaint investigation . . . [t]he rules for adjudicatory proceedings . . . also provide[] for 

thorough post complaint discovery procedures”). To the extent Respondents are proposing such a 

broad definition of “duplicative” RFPs, the argument is rejected as unsupported and 

unpersuasive. 

Moreover, to the extent there may be overlap between some of the Second Request 

Specifications and the RFPs, Complaint Counsel states that it is not asking Respondents to 

produce any documents that have already been produced, and that it has framed its RFPs and its 

search terms with reference to the investigative record developed. To relieve Respondents from 

the responsibility to even search for and identify responsive documents, based on the similarity 

to investigative requests, would improperly allow Respondents to unilaterally determine the 

scope of relevant documents. 

In addition, based on a review of the Second Request Specifications upon which 

Respondents rely, Respondents have failed to justify denying discovery on the ground of 

duplication. For example, Microsoft RFP 3 and Activision RFP 2 both request documents related 

to “cross-play.” It is undisputed that the Second Request Specifications did not include a 

specification related to cross-play. Respondents argue instead that these requests are duplicative 

of the Second Request Specifications because the term “cross-play” appears thousands of times 

in the documents produced in the investigation. The mere fact that documents produced in the 

investigative phased happened to contain a particular term does not render a request to 

affirmatively search for that term duplicative. 

For all the above reasons, Respondents have failed to justify denying discovery on the 

ground that the disputed RFPs are duplicative of the Second Request Specifications. 

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Respondents also contend that Complaint Counsel’s RFPs exceed the number limits set 

under Additional Provision 7 of the Scheduling Order issued in this case. Respondents assert 

that, including all discrete subparts, the Microsoft RFPs total 44 and the Activision RFPs total 

37. Additional Provision 7 states: “Each party is limited to 50 requests for production to parties, 

including all discrete subparts . . . .” See Scheduling Order at 6. Respondents interpret the 

language of Additional Provision 7 to limit RFPs to an aggregate total of 50 for both 

Respondents. Based on the plain language of Additional Provision 7, combined with applicable 

context, this interpretation is rejected.0F

1 Therefore, even accepting Respondents’ characterization 

of the subparts as separate requests, Complaint Counsel is within the limitation of 50 per party 

set forth in the Scheduling Order. 

Finally, although the RFPs seek documents generated through and including February 28, 

2023, Respondents have unilaterally “cut-off” searching for or producing documents generated 

after December 8, 2022, the date the Complaint was issued.1F

2

 Respondents argue that, since the 

issuance of the Complaint, Respondents’ custodians have been involved in defending this and 

other cases challenging the acquisition and, thus, most of the responsive documents would likely 

be privileged. Respondents’ conclusory assertion that documents are likely to be privileged is 

insufficient to bar discovery. See In re Microsoft Corp., No. 9412, 2023 FTC LEXIS 32, at *12-

13 (F.T.C. Feb. 23, 2023) (holding where a non-party sought to quash a document request that it 

argued called for production of privileged documents, request was denied on grounds that the 

non-party was required to produce a privilege log). 

B. Alleged Undue Burden Objections 

1. Microsoft 

Microsoft asserts that it has identified and produced more than 2.5 million documents 

responsive to the Second Request Specifications, as “refreshed”2F

3

 through the date of the 

Complaint. These documents were identified and produced pursuant to a technology assisted 

review (“TAR”) protocol that was agreed to between Complaint Counsel and Microsoft. 

Microsoft argues that Complaint Counsel’s request that Microsoft respond to the RFPs by 

1 The language in Additional Provision 7 was intended to place numerical limits on discovery for each party, not to 

displace the plain language of the FTC Rules that uses the term “party” to refer to each entity, not each “side” of the 

litigation. E.g., 16 C.F.R. § 3.35(a)(1) (“Any party may serve upon any other party written interrogatories, not 

exceeding 25 in number, including all discrete subparts, to be answered by the party served . . . .”); 16 C.F.R. 

§ 3.37(a) (“Any party may serve on another party a request: to produce . . . any designated documents or 

electronically stored information . . . in the possession, custody, or control of the party upon whom the request is 

served . . .”). 

2 It should be noted that in Respondents’ requests for production, Respondents ask Complaint Counsel to produce 

documents dating beyond the date of the Complaint, up to the date of the request. Motion, Exhibit U, Resp. 

Microsoft Corp.’s First Set of Reqs. for Prod. to Complaint Counsel at 7; Motion, Exhibit V, Resp. Activision 

Blizzard, Inc.’s First Set of Reqs. for Prod. to Complainant Federal Trade Commission at 6. 

3 Respondents state that after certifying substantial compliance with the Second Request Specifications, they 

supplemented or “refreshed” their Second Request productions to include documents through the date of the 

Complaint. 

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“re-searching” Microsoft’s files using specified search terms is unduly burdensome. Microsoft 

argues that the TAR protocol already identified all responsive documents in response to the 

Second Request Specifications, and applying search terms would identify and require a review of 

documents that the TAR protocol has already identified as unlikely to be relevant. Microsoft 

asserts that the cost of applying a search term protocol is too high in light of the asserted low 

likelihood of the search yielding relevant documents. As noted above, Microsoft’s unilateral 

determination as to the likelihood of identifying relevant documents is not dispositive. Similarly, 

Respondents’ conclusory assertion that a search for documents generated after the Complaint is 

unduly burdensome because a large volume of these documents is likely to be privileged is an 

insufficient basis to bar discovery. Microsoft, 2023 FTC LEXIS 32, at *10-11. In addition, given 

Microsoft’s apparent resources, its assertions that searching for responsive documents using 

Complaint Counsel’s request search terms is too costly are unpersuasive. For all these reasons, 

Microsoft has failed to justify its objection that searching for responsive documents based on 

search terms as requested by Complaint Counsel is unduly burdensome. 

Furthermore, the record shows that Complaint Counsel is willing to revise the TAR 

protocol for use in this litigation, including to reflect Complaint Counsel’s requested search 

terms, and offered to do so, but that Microsoft did not agree. Motion at 4 n.8. Agreeing to such a 

modification would reduce Microsoft’s alleged burden, and this Order incorporates this option as 

an alternative. 

2. Activision 

Activision asserts that it has identified and produced nearly one million documents 

responsive to the Second Request Specifications, as “refreshed” through the date of the 

Complaint. As to Activision RFPs 5, 7, and 8, Activision states that it agrees to run the search 

terms as requested by Complaint Counsel. Accordingly, this portion of Complaint Counsel’s 

Motion is DENIED as moot. 

Activision argues that Activision RFPs 1 and 2 are unreasonably burdensome as 

evidenced by its Second Request production containing hundreds and thousands of documents 

responsive to these requests. Moreover, Activision asserts that its review of a random sample of 

the additional documents that Activision would need to review per Complaint Counsel’s 

proposal shows a low responsiveness rate for RFP 2, and that, therefore, requiring a further 

search and review is unjustified. However, as explained above, a respondent’s unilateral 

determination as to the likelihood of identifying relevant documents is not dispositive. Moreover, 

the estimated cost Activision cites for complying with these requests is not on its face 

unreasonable. 

IV. 

In summary, Respondents’ remaining objections to Complaint Counsel’s RFPs are 

rejected. As explained above, Complaint Counsel’s Motion is DENIED in part as moot and 

otherwise GRANTED. It is HEREBY ORDERED that: 

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1. Respondents shall comply with Complaint Counsel’s RFPs including as to documents 

generated through and including February 28, 2023, by April 21, 2023; 

2. Microsoft and Complaint Counsel shall use their best efforts to agree to a revised and 

updated TAR protocol for use in this litigation, including to respond to disputed RFPs 

consistent with this Order, within 14 days. In the event that, despite their best efforts, 

Microsoft and Complaint Counsel are unable to agree to a revised TAR protocol 

within 14 days, then within 1 day thereafter, Microsoft and Complaint Counsel shall 

jointly notify the Court of the failure to agree, and the search term methodology 

attached as Exhibit A to Complaint Counsel’s proposed order on this Motion, will be 

entered as an Order; 

3. Respondents are not required to produce any documents that have already been 

produced; and 

4. No party may rely on, or submit as evidence in this case, any document that was not 

produced in discovery. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: March 21, 2023 

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