FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 1 of 11 * -PUBLIC 

PUBLIC 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corp., 

a corporation, DOCKET NO. 9412 

and 

Activision Blizzard, Inc., 

a corporation. 

NON-PARTY SONY INTERACTIVE ENTERTAINMENT LLC’S RESPONSE IN 

OPPOSITION TO RESPONDENT MICROSOFT’S MOTION TO CERTIFY TO THE 

COMMISSION A REQUEST FOR COURT ENFORCEMENT OF SUBPOENA 

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

Court deny Microsoft Corp.’s (“Microsoft”) December 21, 2023 Motion to Certify a Request for 

Court Enforcement of Subpoena Duces Tecum (“Motion” or “Mot.”). 

INTRODUCTION 

Discovery in this case closed on April 7, 2023. Scheduling Order, at 2 (Jan. 4, 2023). 

Six months later, on October 10, 2023, the United States Federal Trade Commission (“Complaint 

Counsel”) filed a motion with this Court seeking to reopen discovery as to two agreements 

signed after discovery’s close, one of them between Microsoft and SIE. Compl. Counsel’s Mot. 

to Extend Fact Disc., at 1-2 (Oct. 10, 2023). Microsoft opposed, arguing that the Court should 

not permit “burdensome discovery into a now-closed merger.” Microsoft’s Opp’n to Mot. to 

1 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 2 of 11 * -PUBLIC 

PUBLIC 

Extend Fact Disc., at 1 (Oct. 20, 2023) (“Opp’n”). The Court granted Complaint Counsel’s 

motion, permitting it to take targeted discovery. See Order on Mot. to Extend Fact Disc., at 4 

(Oct. 26, 2023) (“Order”). Pursuant to that Order, on November 1, 2023, Complaint Counsel 

served SIE with subpoenas seeking documents and testimony regarding the July 2023 agreement 

between Microsoft and SIE. SIE responded with a document production of around 50 

documents on November 21, 2023, and offered a corporate designee for deposition. 

Microsoft obtained a copy of this November 21 SIE document production and also 

arranged to participate in the corporate deposition of SIE. Nearly three weeks after SIE’s 

production, on December 11, 2023, Microsoft contacted SIE and said that it would be serving its 

own document subpoena. Microsoft said that it did not like the quantity or content of the 

documents that SIE produced in response to Complaint Counsel’s subpoena, and wanted to 

renegotiate the scope of SIE’s compliance. Microsoft served a subpoena the following day, and 

demanded that SIE collect nearly a year’s worth of documents from six custodians of Microsoft’s 

choice, including three lawyers, and then run search terms, also of Microsoft’s choice. 

SIE asked Microsoft to identify the legal basis for it to enforce Complaint Counsel’s 

subpoena or serve an out-of-time subpoena of its own. Microsoft could not do so. Instead, it 

filed the instant Motion asking this Court for assistance enforcing its invalid subpoena. 

Microsoft’s Motion should be denied. 

ARGUMENT 

I. Microsoft’s Subpoena Is Invalid 

Microsoft’s Motion for assistance in enforcing its subpoena should be denied because 

there is no valid subpoena to be enforced. This Court’s Order granted Complaint Counsel the 

right to additional discovery: “it is hereby ORDERED that Complaint Counsel is granted leave 

2 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 3 of 11 * -PUBLIC 

PUBLIC 

to serve requests for production of documents and data, interrogatories, notices of depositions, 

and subpoenas duces tecum and ad testificandum for the purpose of taking discovery relevant to 

the Ubisoft Agreement and the Sony Agreement....” Order at 4 (emphasis added). Nowhere 

does the Order permit Microsoft to serve its own requests for production on SIE. More than 

eight months have passed since the close of discovery. If Microsoft wanted to pursue its own 

discovery from SIE regarding the agreement, it knows full well that it needed to seek and obtain 

leave of Court to do so. See 16 C.F.R. § 3.21(c)(2); Order at 2-3. 

Microsoft is represented by sophisticated counsel. Microsoft could have opposed 

Complaint Counsel’s request and asked in the alternative that, if the Court permitted Complaint 

Counsel additional discovery, Microsoft be allowed additional discovery as well. Microsoft 

made a choice not to make such a request, and told the Court that additional discovery was 

unnecessary because the “agreements speak for themselves.” Opp’n at 3 (emphasis added). 

Then, two months later and without asking for leave of Court, Microsoft served its own 

subpoena on SIE seeking additional discovery related to the agreement. 

Microsoft already has: (1) its own documents regarding the Microsoft-SIE July 2023 

agreement, including the agreement itself; (2) a copy of SIE’s November 2023 document 

production regarding the same; and (3) the opportunity to cross-examine SIE’s corporate 

designee regarding the agreement. This is more than sufficient out-of-time discovery regarding 

“agreements [that] speak for themselves.” Microsoft’s December 12, 2023 document subpoena 

to SIE is invalid, § 3.21(c)(2), and its motion to enforce the subpoena should therefore be denied. 

II. SIE Has Already Complied with Microsoft’s Subpoena 

Microsoft’s Motion should be denied for the independent reason that SIE has already 

complied with the subpoena. SIE negotiated the November 1, 2023 subpoena with Complaint 

3 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 4 of 11 * -PUBLIC 

PUBLIC 

Counsel, produced all responsive, non-privileged, non-duplicative documents SIE identified, and 

Complaint Counsel has not objected to SIE’s compliance. SIE did not “cherry pick” the sources 

where it sought responsive documents: Rather, SIE looked for documents where it believed 

documents related to the agreement were likely to be. And, contrary to Microsoft’s insinuations, 

SIE did not review the documents it located to determine which ones it thought would be helpful 

or unhelpful to Microsoft. SIE screened the documents only for responsiveness and privilege, 

and all responsive non-privileged material was produced. 

Microsoft asserts that the production must be “cherry-picked” because in Microsoft’s 

view the production is not large enough or helpful enough to Microsoft. See Mot. 2, 4-5. 

Microsoft asserts that SIE must search the files of six custodians chosen by Microsoft using the 

search terms chosen by Microsoft. Mot. at 6-9. Microsoft offers no precedent in support of its 

position, nor could it. The District Court for the Northern District of California was presented 

with substantively identical (though more timely) arguments in the recent FTC v. Meta litigation. 

See Order re Discovery Dispute re Defendant’s Subpoena to Apple, Inc., FTC v. Meta Platforms, 

Inc., No. 22-cv-04325-EJD (N.D. Cal. Nov. 4, 2022). There, Defendant Meta Platforms, Inc. 

(“Meta”), represented by some of the same counsel representing Microsoft here, served nonparty Apple, Inc. (“Apple”) with a subpoena seeking documents. Id. at 1. The subpoena there 

was timely and authorized. Apple offered to produce responsive documents that it identified 

after a reasonable search, but Meta moved to compel Apple to perform specific custodial 

searches because it believed that Apple might otherwise make a biased and selective production. 

Id. 1-3. The court denied Meta’s request, stating that “[i]t is reasonable for Apple to search for 

such responsive documents by, for example, identifying those employees with relevant 

knowledge about the existence and locations of responsive documents, and then conducting 

4 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 5 of 11 * -PUBLIC 

PUBLIC 

deliberate and focused searches for those documents” and comply with its discovery obligations 

without micromanagement by Meta’s counsel. Id. at 2-3. The court rejected Meta’s demand that 

Apple conduct a search using custodians and search terms of Meta’s choice. Id. at 3. 

Microsoft’s parallel but untimely and procedurally improper request should similarly be denied 

here. 

III. The Burden of Microsoft’s Proposed Re-Search Outweighs Its Likely Benefit, 

Particularly Given Microsoft’s Admission that the Material Sought is Not 

Relevant 

Finally, Microsoft’s motion should be denied for a third independent reason: Courts limit 

discovery where “the burden and expense of the proposed discovery . . . outweigh its likely 

benefit.” 16 C.F.R. § 3.31(c)(2)(iii). Here Microsoft seeks to obtain an order requiring SIE to 

collect and search all documents in the possession of six custodians dating back nearly one year. 

Three of these proposed custodians are lawyers, and production of their documents would 

require extensive privilege review. Such a custodial production would introduce undue burden 

and expense on a non-party in return for a production of materials that Microsoft has already told 

this Court are not relevant. 

Specifically, Microsoft told this Court that background materials discussing its agreement 

with SIE are irrelevant to this litigation because the final agreements speak for themselves. 

Opp’n at 3-6. Microsoft also told this Court that the materials are irrelevant because the 

Microsoft-SIE agreement was not necessary to the district court’s decision to deny Complaint 

Counsel’s motion for a preliminary injunction in any case. See Opp’n at 5. And Microsoft told 

this Court that further materials related to its agreement with SIE are irrelevant because there has 

already been extensive discovery and a 5-day trial on the merits involving 16 witnesses and 

5 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 6 of 11 * -PUBLIC 

PUBLIC 

hundreds of trial exhibits. See Opp’n at 5. In short, Microsoft told this Court again and again 

that the materials at issue in its present motion are irrelevant to this litigation. 

Given Microsoft’s own repeated and vehement positions that the materials at issue in this 

motion are irrelevant, it is perhaps not surprising that Microsoft did not approach this Court and 

seek leave to serve out of time discovery. Microsoft’s demand that SIE collect nearly one year 

worth of documents from six custodians, three of whom are lawyers, and then search and review 

those materials for responsive non-privileged documents is highly burdensome. This burden far 

outweighs the expected benefit of additional discovery here, where Microsoft has conceded that 

the material sought is not relevant to the litigation. 

CONCLUSION 

SIE respectfully requests that the Court deny Microsoft’s Motion. 

6 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 7 of 11 * -PUBLIC 

PUBLIC 

Dated: January 2, 2024 

Respectfully, 

/s/ Larry Malm 

Carl Lawrence Malm 

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

T: +1 202 974 1959 

Cleary Gottlieb Steen & Hamilton LLP 

Counsel for Non-Party Sony Interactive 

Entertainment LLC 

7 
 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 8 of 11 * -PUBLIC 

PUBLIC 

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 DENYING RESPONDENT MICROSOFT CORP.’S 

MOTION TO CERTIFY TO THE COMMISSION A REQUEST FOR COURT 

ENFORCEMENT OF SUBPOENA DUCES TECUM ISSUED TO 

NONPARTY SONY INTERACTIVE ENTERTAINMENT LLC 

Upon consideration of Respondent Microsoft Corp.’s (“Microsoft”) Motion to Certify to 

the Commission a Request for Court Enforcement of Subpoena Duces Tecum Issued to Nonparty 

Sony Interactive Entertainment LLC (“SIE”) and SIE’s opposition thereto, it is HEREBY 

 ORDERED that Microsoft’s motion is DENIED. Microsoft’s request for court 

enforcement of the subpoena duces tecum issued to SIE shall not be certified to the Commission, 

and this Court does not recommend that district court enforcement be sought. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: January __, 2024 

8 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 9 of 11 * -PUBLIC 

PUBLIC 

CERTIFICATE OF SERVICE 

I hereby certify that on January 2, 2024, 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 

Washington, D.C. 20580 

ElectronicFilings@ftc.gov 

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 

Amanda Butler 

Merrick Pastore 

Nicole Callan 

Ethan Gurwitz 

Maria Cirincione 

James Gossmann 

Stephen Santulli 

Edmund Saw 

Michael A. Franchak 

Peggy Bayer Femenella 

Kassandra DiPietro 

J. Alexander Ansaldo 

David E. Morris 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, D.C. 20580 

(202) 326-2289 

jweingarten@ftc.gov 

jabell@ftc.gov 

mlevert@ftc.gov 

9 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 10 of 11 * -PUBLIC 

PUBLIC 

jfleury@ftc.gov 

cakleman@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 

dmorris1@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 

10 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/02/2024 OSCAR NO 609258 | PAGE Page 11 of 11 * -PUBLIC 

PUBLIC 

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 

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 

bradley.pierson@skadden.com 

matthew.martino@skadden.com 

Respectfully submitted, 

/s/ Larry Malm 

Carl Lawrence Malm 

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

T: +1 202 974 1959 

Cleary Gottlieb Steen & Hamilton LLP 

Counsel for Non-Party Sony Interactive 

Entertainment LLC 

11