UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/20/2023 OSCAR NO 608798 | PAGE Page 1 of 14 * -PUBLIC 

In the Matter of 

Microsoft Corp., 

a corporation, 

Docket No. 9412 

and 

Activision Blizzard, Inc., 

a corporation. 

RESPONDENT MICROSOFT’S OPPOSITION TO COMPLAINT COUNSEL’S 

MOTION TO EXTEND FACT DISCOVERY TO ALLOW DISCOVERY REGARDING 

RESPONDENTS’ AGREEMENTS WITH UBISOFT ENTERTAINMENT SA 

AND SONY INTERACTIVE ENTERTAINMENT LLC 

Complaint Counsel’s motion obscures the true issue presented: Should the Court permit 

Complaint Counsel to reengage in broad and burdensome discovery into a now-closed merger in 

the misguided hope of resuscitating theories of harm that have been rejected by a federal court and 

worldwide regulators? Microsoft respectfully submits that the answer to that question is no. 

As the Court is aware, a federal court has already ruled against the Federal Trade 

Commission (the “Commission”) in this matter. After a five-day evidentiary hearing involving 

testimony from 16 witnesses and the introduction of hundreds of exhibits, Judge Corley concluded 

that the Commission “has not raised serious questions regarding whether the proposed merger is 

likely to substantially lessen competition in the console, library subscription services, or cloud 

gaming markets,” and thus, was unlikely to prevail in this administrative proceeding. See Ex. A, 

Prelim. Inj. Op., FTC v. Microsoft Corp., No. 23-cv-02880-JSC, at 51 (N.D. Cal. July 10, 2023) 

(“PI Opinion”). 

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Since that ruling was issued, Complaint Counsel’s case has become only weaker. Long 

ago (and well prior to the close of discovery), Microsoft offered Sony Interactive Entertainment 

LLC (“Sony”)—the principal complainant about the merger—an agreement to keep Call of Duty 

on its popular PlayStation console for ten years. 

shortly after Judge Corley rejected the 

Commission’s challenge, Sony immediately signed guaranteeing Sony 

access to Call of Duty (the “Sony Agreement”). See Ex. B, Decl. of Megan Granger in Supp. of 

Opp’n ¶¶ 4–6 (“Granger Decl.”). 

Just prior to the closing of the merger, Activision Blizzard, Inc. (“Activision”) also divested 

its cloud streaming rights to Ubisoft Entertainment SA (“Ubisoft”), including in the U.S. (the 

geographic market the Commission alleges) for all current games and any future games developed 

over the next 15 years (the “Ubisoft Agreement”). See Granger Decl. ¶ 13. Without ever seeing 

the Ubisoft Agreement, Judge Corley rejected the Commission’s cloud theory, finding that the 

“merger will enhance, not lessen, competition in the cloud streaming market” because Microsoft 

had already entered into agreements with other cloud streaming competitors to make Activision 

content available on their services. See PI Opinion at 49. Independent of these agreements, Judge 

Corley separately rejected the Commission’s assertion that an independent Activision would put 

its content on cloud streaming services, explaining: “[T]he fact is, Activision content is not 

currently on any cloud-streaming service. And it is not likely to be available absent the merger.” 

Id. at 50. The Ubisoft Agreement, 

, see Granger Decl. ¶ 16, simply confirms that the 

Commission’s cloud gaming theory of harm is meritless. On top of the Court’s other evidentiary 

findings, Microsoft cannot withhold Activision content from cloud streaming competitors because 

2 
See id. ¶¶ 13, 

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15, 16. 

The Commission has already taken the unprecedented step of reinstituting its challenge to 

this merger after losing in federal court. Now, the Commission seeks to reopen discovery for a 

wide-ranging exploration of the agreements Microsoft signed with Sony and Ubisoft. To be clear, 

if this case proceeds to an administrative hearing, Microsoft intends to introduce both agreements 

as further evidence that the Commission’s claim that Microsoft will withhold Activision content 

from competitors is unfounded and contradicted by real-world facts. 

, and, to ensure the Ubisoft 

Agreement can be introduced at a hearing, Microsoft does not oppose some additional discovery 

provided that discovery is appropriately limited and narrowly tailored. 

But Complaint Counsel’s proposed discovery is neither appropriately limited nor narrowly 

tailored. Complaint Counsel seeks eight more weeks of discovery—including 20 new Requests 

for Production, 15 new Interrogatories, and additional third-party discovery. See Proposed Order 

to Compl. Counsel’s Mot., at 1–2 (Oct. 10, 2023) (“CC’s Proposed Order”). Complaint Counsel’s 

motion also completely avoids mentioning that it seeks an unlimited number of new depositions. 

See id.; see also Ex. C, Decl. of Kieran Gostin in Supp. of Opp’n ¶ 19 (“Gostin Decl.”). 

The Court should deny this request to take discovery in this manner. 

Granger 

Decl. ¶¶ 7, 18. These agreements speak for themselves, and Complaint Counsel provides no 

convincing basis for requiring such broad discovery. 

Though Complaint Counsel inexplicably fails to mention so in its brief, Microsoft offered 

to allow Complaint Counsel to serve 5 new Requests for Production on Microsoft and take a Rule 

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3.33(c)(1) corporate deposition of Microsoft. Gostin Decl. ¶ 20. Even though it is normally 

unnecessary to do so, in response to Complaint Counsel’s request, Microsoft further indicated that 

the deponent would be with personal 

knowledge of both the Sony and Ubisoft Agreements and their negotiation. See id. ¶ 24; Granger 

Decl. ¶¶ 8, 12. Complaint Counsel’s brief does not address this offer, let alone explain why it is 

inadequate. The Court should set this offer as the ceiling of what discovery is permitted. 

ARGUMENT 

Complaint Counsel has not shown the “good cause” required to justify the broad discovery 

it seeks. See 16 C.F.R. § 3.21(c)(2) (“The Administrative Law Judge may, upon a showing of 

good cause, grant a motion to extend any deadline or time specified in this scheduling order . . . . 

In determining whether to grant the motion, the Administrative Law Judge shall consider any 

extensions already granted, the length of the proceedings to date, the complexity of the issues, and 

the need to conclude the evidentiary hearing and render a recommended decision in a timely 

manner.”). 

I. Broad Discovery Into The Sony And Ubisoft Agreements Is Unwarranted. 

There are several reasons that Complaint Counsel should not be permitted to reopen 

discovery—on the broad terms it seeks—into the Sony and Ubisoft Agreements. 

First, Complaint Counsel has already taken broad discovery in this case, encompassing a 

ten-month investigation, five months of discovery before this Court, and a federal preliminaryinjunction proceeding. Discovery taken by Complaint Counsel has included: 

4 
See Gostin Decl. ¶¶ 4–14. The 5-day preliminary-injunction hearing 

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included additional testimony from 16 witnesses by way of live testimony or deposition 

designation and testimony by declaration from another—including Microsoft’s CEO, Activision’s 

CEO, Xbox’s CEO, the Microsoft CFO, the Xbox CFO, and economic experts, all but one of 

whom testified live. See id. ¶¶ 15–16. 

Second, based on that extensive record, a federal court has already rejected the 

Commission’s theories of harm. The Commission had the opportunity to present its strongest case 

before Judge Corley, and it (even on appeal in the Ninth Circuit) has not identified a single 

document or witness it did not get to introduce during the hearing. The Sony and Ubisoft 

Agreements only make the Commission’s arguments weaker. 

Third, Complaint Counsel does not detail any discovery it needs into the Sony Agreement. 

This is not surprising. The Sony Agreement and was 

considered by Judge Corley in ruling, 

See Granger Decl. ¶¶ 4–5. As Judge Corley 

explained, prior to the close of discovery, 

PI Opinion at 

38. Though “not necessary to the Court’s finding,” Judge Corley found 

Id. The only 

thing that has changed since then is that Sony has now signed See 

Granger Decl. ¶¶ 4–5. 

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Fourth, Complaint Counsel’s purported reasons for needing discovery into the Ubisoft 

Agreement do not warrant broad and intrusive discovery. The Ubisoft Agreement, which speaks 

for itself, See id. ¶ 18. 

See id. Though Complaint Counsel 

only briefly touches on the additional information it purportedly needs about the Ubisoft 

Agreement, the suggestion seems to be that Complaint Counsel believes that Ubisoft may not be 

able to profit under the terms of the agreement. See Mem. in Supp. of Compl. Counsel’s Mot. 

(Oct. 10, 2023) (“CC’s Br.”) (“Complaint Counsel is entitled to discovery of . . . whether Ubisoft 

can profitably offer streamed Activision games.”). But Complaint Counsel has not provided any 

reason that a sophisticated company like Ubisoft, with a market capitalization over $3 billion and 

experience streaming its own games on the Ubisoft+ and Amazon Luna streaming services, would 

enter into an agreement from which it could not profit. Complaint Counsel also suggests that it 

needs discovery into Respondents’ negotiation to extend the deadline for completing the 

transaction, CC’s Br. at 7, but Complaint Counsel does not even try to explain the relevance of 

such an inquiry. 

II. Complaint Counsel’s Discovery Proposal Is Overbroad. 

The broad discovery plan outlined in Complaint Counsel’s proposed order belies its claim 

that it seeks discovery only “for the limited purpose of allowing discovery regarding [the Sony and 

Ubisoft Agreements].” See Compl. Counsel’s Mot. at 1. 

Most importantly, Complaint Counsel’s proposal, which seeks to reopen discovery for 

8 weeks, contains no limit on depositions. See CC’s Proposed Order at 1–2. Indeed, during the 

meet-and-confer process, 

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Gostin Decl. ¶ 19. These three executives were 

 highlights the importance of limiting any additional discovery. 

each required to testify at Investigational Hearings, all three were deposed by Complaint Counsel 

during discovery, and each was also called by Complaint Counsel to testify live at the preliminaryinjunction hearing. See id. ¶¶ 4, 11, 14, 15. There is no basis for Complaint Counsel to seek to 

reopen discovery so that

Complaint Counsel also seeks to serve 20 Requests for Production, 15 Interrogatories, and 

additional third-party discovery. CC’s Proposed Order at 1–2. Comparing Complaint Counsel’s 

proposal for additional discovery with the discovery already completed in this case demonstrates 

the breadth of additional discovery Complaint Counsel seeks. Complaint Counsel’s proposal to 

serve 20 Requests for Production and 15 Interrogatories means Complaint Counsel wants to serve 

more than half the number Requests for Production (39) and Interrogatories (25) they served 

throughout the entirety of discovery. See Gostin Decl. ¶¶ 7, 8. Such broad proposed discovery is 

inconsistent with Complaint Counsel’s claim that it wants to take narrowly tailored discovery into 

the Sony and Ubisoft Agreements, and should not be permitted. See Order on Compl. Counsel’s 

Mot. to Compel Produc. of Docs. at 1 (Mar. 21, 2023) (“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.’” (quoting 16 

C.F.R. § 3.31(c)(2)(i), (iii))). 

III. Additional Discovery Should Be Narrowly Tailored. 

Contrary to Complaint Counsel’s claim, discovery should be limited to the reasonable 

proposal Microsoft made during negotiations with Complaint Counsel, which Complaint Counsel 

neglects to mention anywhere in its brief. 

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In the motion, Complaint Counsel asserts that it needs discovery into: (1) the different 

payment schemes in the Ubisoft Agreement; (2) Microsoft’s assertion that the Ubisoft Agreement 

is procompetitive; (3) Ubisoft’s plans to market cloud streaming rights of Activision games; and 

(4) Microsoft’s and Activision’s decision to extend the deadline for completing the proposed 

transaction, which provided time for negotiating and executing the Ubisoft Agreement. CC’s Br. 

at 7–8. 

Putting aside that none of this discovery is essential to litigating this case, this information 

can readily be obtained through Microsoft’s proposed discovery plan, which includes 5 Requests 

for Production and a 3.33(c)(1) corporate deposition. See Gostin Decl. ¶ 20. As noted, Microsoft 

has already indicated that it will make available as its corporate designee. Id. ¶ 24. 

See Granger 

Decl. ¶¶ 8, 12. Moreover, this is not the first time that Complaint Counsel will have served a 

3.33(c)(1) notice on Microsoft in this case, see Gostin Decl. ¶ 14, and Complaint Counsel has 

never raised any concerns about the Microsoft corporate designees’ level of preparedness. If a 

3.33(c)(1) deposition is noticed on the Sony and Ubisoft Agreements, Microsoft will of course 

adequately prepare to testify about the noticed topics, provided those topics are 

appropriately tethered to the Agreements. See 16 C.F.R. § 3.31(c)(2)(i), (iii). 

CONCLUSION 

Microsoft respectfully requests that the Court deny Complaint Counsel’s motion to extend 

discovery in the manner requested. To the extent that additional discovery is required for the Sony 

and Ubisoft Agreements to be introduced at an administrative hearing, Microsoft asks discovery 

be limited to no more than 5 Requests for Production and a 3.33(c)(1) corporate deposition about 

the agreements. 

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Dated: October 20, 2023 Respectfully submitted, 

By: /s/ Beth Wilkinson 

Beth Wilkinson 

Rakesh N. Kilaru 

Kieran Gostin 

Grace L. Hill 

Anastasia M. Pastan 

Sarah E. Neuman 

Alysha Bohanon 

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 

abohanon@wilkinsonstekloff.com 

Michael Moiseyev 

Megan A. Granger 

Weil Gotshal & Manges LLP 

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 October 20, 2023, 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) 

Jennifer Fleury (jfleury@ftc.gov) 

Michael A. Franchak (mfranchak@ftc.gov) 

James Gossmann (jgossmann@ftc.gov) 

Ethan Gurwitz (egurwitz@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 

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Counsel Supporting the Complaint 

/s/ Beth Wilkinson 

Beth Wilkinson 

Counsel for Microsoft Corp. 

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EXHIBIT A 

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
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EXHIBIT B 

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
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EXHIBIT C 

[This entire exhibit is Confidential pursuant to the 

Protective Order]