FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 1 of 12 * PUBLIC *; PUBLIC RECORD

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. 

NON-PARTY SONY INTERACTIVE ENTERTAINMENT LLC’S MOTION FOR 

LEAVE TO FILE PROPOSED REPLY IN SUPPORT OF ITS MOTION TO QUASH 

OR LIMIT SUBPOENA DUCES TECUM 

Pursuant to Rule 3.22(d), Sony Interactive Entertainment LLC (“SIE”) respectfully 

requests that the Court permit SIE to file the attached Proposed Reply supporting SIE’s Motion 

To Quash Or Limit Subpoena Duces Tecum. This brief four-page reply would be helpful to the 

Court in resolving this issue by responding to Microsoft’s improper request for relief in their 

opposition to SIE’s motion and correcting a few discrete points. 

The Proposed Reply is attached as Exhibit A. 

Dated: February 14, 2023 

Respectfully Submitted, 

/s/ Leah Brannon 

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 LLC 
 

 

PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 2 of 12 * 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 GRANTING NON-PARTY SONY INTERACTIVE 

ENTERTAINMENT LLC’S MOTION FOR LEAVE TO FILE PROPOSED REPLY IN 

SUPPORT OF ITS MOTION TO QUASH OR LIMIT SUBPOENA DUCES TECUM 

FTC Rule 3.22(d) authorizes the Administrative Law Judge to permit replies in support of 

motions. Based on the representations in the Proposed Reply, the Motion is GRANTED 

and it is hereby ORDERED that the Proposed Reply is accepted and deemed properly filed. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: February , 2023 
PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 3 of 12 * PUBLIC *; 

CERTIFICATE OF SERVICE 

I hereby certify that on February 16, 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 

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 

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 
PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 4 of 12 * PUBLIC *; 

jabell@ftc.gov 

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 

2 
PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 5 of 12 * 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 

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/ Leah Brannon 

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 LLC 

3 
PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 6 of 12 * PUBLIC *; 

EXHIBIT A 
 

PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 7 of 12 * 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] REPLY IN SUPPORT OF SONY INTERACTIVE ENTERTAINMENT 

LLC’S MOTION TO QUASH OR LIMIT SUBPOENA DUCES TECUM 

Sony Interactive Entertainment LLC (“SIE”) respectfully submits the following reply in 

support of its Motion to Quash or Limit Microsoft’s Subpoena Duces Tecum (the “Motion”). 

First, the Court should deny Microsoft’s demand that the Court order SIE to complete 

document production by March 13, 2023. Opp. at 2 (filed Feb. 13, 2023). It is inappropriate for 

Microsoft to slip its own request for relief into an opposition to SIE’s Motion. Microsoft’s 

request is effectively a motion to compel enforcement of its subpoena, which is not authorized 

under the Rules. 16 C.F.R. §§ 3.38(a), (c). Moreover, given the breadth of discovery Microsoft 

has demanded, its preferred deadline cannot be met, and Microsoft exacerbated this issue by 

waiting a full ten days to respond to SIE’s Motion. (Microsoft’s non-response to SIE’s February 

3 proposals is delaying technology assisted review). Ex. 1 (K. Gostin 2/10 Email). 

Second, Microsoft does not deny it agreed to drop Lin Tao and Hideaki Nishino as 

proposed custodians, and only began demanding their files again as retaliation for SIE seeking 

relief from this Court on other issues. Microsoft previously agreed Tao could be dropped in 

favor of a targeted pull of financial documents. Now, Microsoft tells this Court that it needs her 

1 
PUBLIC RECORD

custodial files to obtain “information about SIE’s financial health and plans,” Opp. at 3, but fails

to mention SIE’s agreement to conduct a targeted pull offinancial reports, Mot., Ex. H at 16

(Request 21). These reports plus custodial documents from others, including SIE’s CEO, Jim

Ryan, will provide Microsoft with SIE’s financial health and plans. This is an antitrust case

against Microsoft, not an accounting audit of SIE.

With respect to Nishino, Microsoft dropped its request for him several weeks ago. It now

says it needs his documents to test SIE’s [

] ” Opp. at 3 (quoting [ ] ). Again, Jim Rya; [

] will be a custodian. There is no need for

Nishino to be added as a custodian. Mot., Ex. A (S. Neuman 1/30 Email at 1, 5-6) (Microsoft’s

counsel chopped Nishino as a custodian as ofJanuary 26, 2023 and Tao as a custodian as of

January 30, 2023).

Because Tao and Nishino are unnecessary, the incremental burden imposed by adding

them is disproportionate, even without considering the Japanese language content in then files.

Microsoft now says any burden is ،،unsupported.” Opp. at 4. But adding two unnecessary

custodians obviously adds burden, and counsel for SIE told counsel for Microsoft that then files

would be especially burdensome given the Japanese language content in them. Coimsel for

Microsoft never requested additional information on this issue. Given Microsoft’s new position,

however, SIE offers a supplemental declaration for Christian J. Mahoney, explaining that he

estimates [

] ” Ex. 2

(Mahoney Deci. 3-4).

2

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 8 of 12 * PUBLIC *; 
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Third, Microsoft’s argument that there is no privilege burden involved in reviewing the

files ofan in-house lawyer is legally and factually wrong. Microsoft argues that an in-house

lawyer’s communications with third parties such as public relations and government affairs

consultants are ،،by definition” not privileged but fails to address the case law SIE cited in its

motion, which holds otherwise. Mot. at 4-5. Microsoft also ignored Mr. McCurdy’s sworn

statement that [

]

Mot., Ex. F (McCurdy Decl. ٦| 4). Parsing through his privileged documents for a few nonprivileged communications is entirely disproportionate, particularly since Microsoft is obtaining

external communications related to the transaction in the files ofseven business custodians. See

Mot. at 5.

The case law Microsoft cites is entirely inapposite. In Forth v. Walgreen Co., 2020 WL

4569501, at *2-3 (D.R.I. Aug 7, 2020), the parties agreed that a search would be limited to inhouse counsel’s communications with one third party (Walgreens) and the parties agreed those

communications would not be privileged, id. (،،The parties concurred that this additional

limitation . . . would eliminate the burden ofprivilege concerns.”). That is a far ciy from the

fishing expedition Microsoft is requesting here, where SIE does not agree that the requested

search would eliminate the burden ofprivilege concerns. See Mot. at 4-5. And, in the other two

cases cited by Microsoft, the in-house counsel at issue had highly relevant non-legal functions.

See In re RailFreight Fuel Surcharge Antitrust Litig., 2009 WL 3443563, at * 9-10 (D.D.C. Oct.

23, 2009) (addressing scope ofreview ofin-house counsel’s files where plaintiffs alleged the

individuals at issue had non-legal duties and attended a price-fixing meeting, and defendant did

not contest their inclusion as custodians); Joint Status Report, Le v. Zuffa, LLC, No. 2:15-cv3

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 9 of 12 * PUBLIC *; 
D. Bruce Hoffinan (blioffman@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:+l 202 974 1500

Cleary Gottlieb Steen & Hamilton LLP

CounselforNon-Party Sony InteractiveEntertainment LLC

PUBLIC RECORD

1045 (D. Nev. Dec. 4, 2015) (ECF No. 206) (“[E]ach ofthese custodians perfonned significant.

highly relevant non-legal functions in addition to their legal functions.”)؛ Minute Entiy, Le v.

Zuffa, LLC, No. 2:15-cv-1045 (D. Nev. Dec. 8, 2015) (ECF No. 207). By contrast, Mr.

McCurdy [ ] Mot., Ex. F (McCurdy Deci. ٦[ 3) [

]

Mot. at 4-5.

Dated: February 14, 2023

Respectfully submitted,

/؟/Leah Brannon

4

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PUBLIC RECORD

EXHIBIT 1

[This entire exhibit is subject to the Protective Order]

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/16/2023 | Document No. 606952 | PAGE Page 11 of 12 * PUBLIC *; 
 

PUBLIC RECORD

EXHIBIT 2

[This entire exhibit is subject to the Protective Order]

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