FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/10/2023 | Document No. 606907 | PAGE Page 1 of 9 * 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 ENTERING JOINT STIPULATION GOVERNING 

THE TAKING OF REMOTE DEPOSITIONS 

On February 10, 2023, Respondent Microsoft Corp., Respondent Activision Blizzard, 

Inc., and Federal Trade Commission Complaint Counsel filed a proposed Stipulation Governing 

the Taking of Remote Depositions (“Stipulation”) and jointly request that the Stipulation be 

entered as an order in this matter. 

Based on a review of the terms of the Stipulation and in consideration of the agreement of 

all parties to its terms, the parties’ request is GRANTED, and it is ORDERED that the attached 

stipulation, as submitted by the parties, is hereby entered as an order in this matter. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: February 10, 2023 
 

 

 

 

 

 

 

 

 

 

 

 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corp., Docket No. 9412 

a corporation, 

and 

Activision Blizzard, Inc., 

a corporation. 

STIPULATION AND ORDER GOVERNING THE 

TAKING OF REMOTE DEPOSITIONS 

The parties to the above-captioned action (the “Action”), through their 

respective counsel, stipulate and agree as follows: 

I. GENERAL GUIDELINES AND SCOPE 

1. This Stipulation and Order Governing the Taking of Remote 

Depositions (the “Remote Deposition Protocol”) will govern, subject to Court 

approval, the taking of fact and expert depositions in the above-captioned matter as 

a supplement to rules and procedures that may apply, including those set forth in 16 

C.F.R. Part 3 (Rules of Practice for Adjudicative Proceedings), 16 C.F.R. Part 4 

(Miscellaneous Rules), the Protective Order Governing Confidential Material dated 

December 9, 2022, the Scheduling Order dated January 4, 2023, and the Federal 

Rules of Civil Procedure and Evidence. 

2. The Deposing Party Counsel is responsible for retaining, and covering 

the cost of, the court reporter, videographer, and any other vendor retained to assist 

with the Remote Deposition and needed to comply with the terms of this Protocol. 

For any Third Party depositions where both Complaint Counsel and Respondent have 

noticed the Remote Deposition of the same witness, unless otherwise agreed, any 

costs associated with providing the Platform for the taking of a Remote Deposition 

shall be the responsibility of the Noticing Party that first notices the Remote 

Deposition at issue. 

3. The Parties agree to use U.S. Legal Support (the “Vendor”) for all 

Remote Depositions. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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II. DEFINITIONS 

4. “Attending Counsel” means any legal counsel for a party (including counsel of record 

and agency/in-house counsel) who is not Deposing Counsel or Defending Counsel, but who is 

attending a Remote Deposition either in person or remotely. 

5. “Defending Counsel” means legal counsel representing the Witness with 

respect to a deposition in this Litigation. In the event a non-party Witness does not have 

counsel, then “Defending Counsel” shall mean the Witness. 

6. “Deposing Counsel” means the legal counsel of the Party or Parties noticing 

and/or questioning the Witness at a Remote Deposition in this litigation. For clarity, Deposing 

Counsel does not include any legal counsel who does not notice or cross-notice a Remote 

Deposition but is afforded reasonable time to ask follow-up questions of the deponent. 

7. “Noticing Party” means a Party that noticed a Remote Deposition of a 

Witness pursuant to FTC Rule 3.33, 16 C.F.R. § 3.33. 

8. “Parties” for purposes of this Remote Deposition Protocol means the 

named Parties to this Action as well as consultants, agents, representatives, or former 

employees of the named Parties if they are represented by Defending Counsel or if any 

Party is paying for their counsel. 

9. “Third Party” or “Third-Party Witness” means all natural or legal persons that 

are neither Parties nor persons retained by any of the Parties or the Parties’ counsel and from 

whom a Party is seeking testimony at a Remote Deposition in this litigation. 

10. “Platform” means the video-conferencing computer application that enables 

the Parties to conduct a Remote Deposition in accord with this Remote Deposition Protocol. 

11. “Remote Deposition” means any deposition conducted pursuant to Rule 

3.33 of the Part 3 Rules of Practice for Adjudicative Proceedings using a Platform as 

agreed to under this Remote Deposition Protocol where all of the participants—including 

Deposing Counsel, Defending Counsel, Attending Counsel, the Witness, court reporters, 

and/or videographers—are not physically present in the same location at the time the 

deposition is taken. 

12. “Witness” means the person, including Third Parties, whose Remote 

Deposition has been noticed in this litigation or any person designated to appear to give 

testimony on behalf of a Party or Third Party pursuant to FTC Rule 3.33(c)(1), 16 C.F.R. 

§ 3.33(c)(1). 

13. “Primary Counsel” means counsel designated by the Parties and the Witness 

at the beginning of the Remote Deposition as provided in this Paragraph. On the record at 

the start of the Remote Deposition, the Parties shall identify no more than one counsel each 

to serve as Primary Counsel. Similarly, if the Witness is a Third-Party Witness, then the 

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Witness shall, on the record, at the start of the Remote Deposition, also identify no more than 

one counsel to serve as Primary Counsel during the Remote Deposition. 

III. AGREEMENT TO CONDUCT REMOTE DEPOSITIONS 

14. All Party depositions in this Action shall be Remote Depositions unless 

otherwise agreed to by the Parties or unless otherwise ordered by the Court. Third-Party 

depositions in this Action shall be held in person at the option of any Noticing Party. In the 

event a witness raises a reasonable objection to an in-person deposition, the Noticing Party 

and the relevant Third-Party shall negotiate in good faith about the format of the deposition. 

Parties who do not agree to an in-person deposition for a given Witness shall have the 

opportunity to participate remotely in the deposition using the Platform. A copy of this 

stipulation shall be provided to each Witness or Defending Counsel. 

15. Remote Depositions in this case shall be taken in compliance with applicable 

local and state regulations and orders governing the Witness’s location. 

16. Notwithstanding any other rule to the contrary, the Parties stipulate that 

the Witness’s oath or affirmation may be administered remotely. The place of 

examination is the location of the Witness. A Remote Deposition will be deemed to have 

been conducted before an appropriate officer, as long as that officer attends the 

deposition via the same Platform that the Witness and Primary Counsel use to attend the 

deposition. 

17. The Parties hereby expressly waive all objections to any Remote 

Deposition, and the admissibility of any testimony given during a Remote Deposition, 

based solely on the fact it was a Remote Deposition. Testimony given during a Remote 

Deposition, including both the transcript and video record, if any, may be used at a trial, 

at hearings, in motions, or in other modes in these proceedings to the same extent that inperson deposition testimony may be used at trial, at hearings, in motions, or in other 

modes in these proceedings. 

IV. DURATION OF REMOTE DEPOSITIONS 

18. If technical issues result in the inability of any Primary Counsel, the court 

reporter, videographer, or the Witness to receive either the audio or video feed of a Remote 

Deposition, the Remote Deposition shall be paused. Any portion of the deposition that has 

been transcribed while a Primary Counsel or the Witness was disconnected or experiencing 

technical difficulties must be re-read upon the resolution of the technical difficulty, and the 

disconnected Primary Counsel must be given an opportunity to object to any questions or 

answers that occurred in their absence. Any time spent, whether on or off the record, 

dealing with technical issues or other issues unique to the taking of the Remote Deposition 

shall not count against the time allotted for the deposition by the Scheduling Order in this 

Action. The duration of a Remote Deposition may be further enlarged by agreement of the 

Parties or by order of the Court. 

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19. If technical difficulties arise during the taking of a Remote Deposition, 

counsel for the Parties must meet and confer immediately, by telephone or other means, to 

determine whether the Remote Deposition can proceed or should be continued to a future 

date. If technical difficulties make the completion of a Remote Deposition impracticable, 

counsel for the Parties and the Witness shall resume the Remote Deposition at the earliest, 

mutually convenient opportunity. Either Party or a Third-Party Witness may seek by letter 

motion a protective order regarding whether or the terms under which the Remote 

Deposition may resume. 

V. THE TECHNOLOGY TO BE USED FOR REMOTE DEPOSITIONS 

20. The Platform must allow for the court reporter to accurately record, and for 

all participating attorneys and the court reporter to hear and see, the Witness, Deposing 

Counsel, Defending Counsel, and any exhibits that are introduced on the Platform during 

the Remote Deposition. 

21. The Noticing Party shall be responsible for arranging the taking of a Remote 

Deposition and ensuring that email invitations to attend the Remote Deposition are sent to 

the Witness, the court reporter, and any Attending or Defending Counsel who, no later than 

four days before the Remote Deposition, shall provide their email addresses to the Noticing 

Party. In the event that both sides have noticed the Remote Deposition, the Party who first 

noticed the Remote Deposition shall be responsible for coordinating the aforementioned 

logistics. In lieu of providing the Witness’s email address, Defending Counsel may elect, upon 

notice to the Noticing Party, to forward the email invitation and other relevant information to 

the Witness directly. 

22. The Parties shall ensure that the Witness has access to technology that meets 

the minimum standards required by the Platform to ensure the transmission of audio and 

video feeds via the Platform. Upon the request of any Party, the Witness, or Defending 

Counsel, a Noticing Party shall arrange for the Witness and all participating attorneys to 

have the ability to participate in a test run of the Platform. 

23. The Platform for a Remote Deposition will be configured such that any 

private chat feature is disabled. Breakout room features may be enabled only for breaks 

and recesses off the record. Conversations in the breakout rooms shall not be recorded. 

All other chat, instant message, e-mail, and/or texting features that may be visible to or 

used to communicate with the Witness are prohibited and shall be closed or disabled 

during the Remote Deposition in a manner that prevents the Witness from receiving 

messages, alerts, and notifications through such features. 

24. Remote Depositions subject to this Remote Deposition Protocol shall be 

recorded by stenographic means at the expense of the Noticing Party. In accordance with 

Additional Provision 13 of the Scheduling Order entered in this Action, the deposition also 

may be recorded by audiovisual means at the election of either side, at the electing side’s 

expense. Each Party will bear its own costs for copies of transcripts and copies of video 

recordings of any deposition. No Party or person other than the court reporter, videographer, 

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and/or audio recorder shall record any portion of the Remote Deposition. This prohibition 

extends to capturing images, audio, or footage by any means, including but not limited to 

taking screenshots, audio recordings, videos, or pictures of the deposition. 

25. While Deposing Counsel, the Witness, and Defending Counsel all must be 

visible via video on the Platform while the Remote Deposition is being conducted, any 

video recording shall be made using the camera focused on the Witness, not Deposing 

Counsel or Defending Counsel, or any of the other attendees. Any persons who are 

attending a deposition other than Deposing Counsel, the Witness, Defending Counsel, and 

any other counsel in the same room with the witness shall have their cameras and 

microphones turned off while testimony is being taken on the record. 

26. Any Party may elect to have a technical specialist attend a Remote 

Deposition to ensure that technical issues are resolved in a timely manner. 

VI. EXHIBITS 

27. Deposing Counsel shall be responsible for ensuring that any exhibits that they 

wish to mark and use at a Remote Deposition can be shown to the Witness in a manner that 

enables the Witness, the court reporter, and Primary Counsel to review the exhibits in their 

entirety during the course of the deposition and to control their ability to review the exhibits. 

The Parties agree that the preferred method of marking and using exhibits for a Remote 

Deposition is through the Platform, which shall enable Deposing Counsel to share exhibits 

with the Witness, court reporter, and all Attending Counsel. A Party also may email a 

compressed .zip file, secure FTP, or other secure electronic link of the documents in their 

entirety that may be used as exhibits during the Remote Deposition to the Witness, court 

reporter, and Defending Counsel no later than 3:00 pm the business day prior to the start of 

the Remote Deposition. Prior to the commencement of the Remote Deposition, the 

recipients may only open the .zip file, FTP, or electronic link for the limited purpose of 

ensuring that they are able to access the exhibits; the recipients may not open individual 

exhibits except as permitted in Paragraph 29, infra. 

28. If exhibits are transmitted via .zip file, secure FTP, other electronic link, to the 

extent that any exhibit is not used or introduced during the course of the Remote Deposition, 

to safeguard the attorney work product of the Deposing Counsel, the Witness, Defending 

Counsel, Attending Counsel, and any persons not affiliated with the Deposing Counsel may 

not open or review any such unused or unintroduced exhibit, whether during the Remote 

Deposition or at any time thereafter. The Witness, Defending Counsel, and any persons not 

affiliated with the Deposing Counsel other than the Vendor shall not review any exhibit 

unless and until it is introduced as an exhibit by the Deposing Party at the Remote 

Deposition. Third-Party Witnesses and their Defending Counsel shall not retain any copies 

of documents sent in advance of or used during the deposition. 

29. If the Platform for a Remote Deposition does not permit the court reporter to 

mark exhibits remotely, Deposing Counsel shall be responsible for marking exhibits and 

ensuring that such marks are communicated to the court reporter and all participating 

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attorneys on the record during the Remote Deposition. 

30. Any Noticing Party that wishes to use hard copies as exhibits during a 

deposition must ensure that the Witness, the court reporter, Primary Counsel, counsel for 

the opposing Party, and counsel for any non-Party Witness each receive a physical copy of 

the documents no fewer than 24 hours before the start of the deposition. Each recipient of 

the physical copies of the exhibits shall not review any exhibit until it is introduced as an 

exhibit by the Noticing Party at the Remote Deposition. Notwithstanding the use of a 

physical copy, an exhibit introduced by the Noticing Party shall also be marked through the 

Platform, which electronic copy will be the official exhibit, absent agreement otherwise by 

the Parties. If a Party provides documents in sealed envelopes, the Witness and any other 

recipient of the hard-copy exhibits shall not open the envelopes until asked to do so during 

the Remote Deposition and shall only open the envelopes on video. Non-party Witnesses 

and their Defending Counsel shall not retain any copies of documents sent in advance of or 

used during the deposition and shall confirm that they will return or destroy any such 

documents at the end of the deposition. Nothing in this paragraph is meant to preclude 

Defending Counsel who represents a Witness and is physically located in the same room as 

the Witness during the Remote Deposition from providing a hard copy of an exhibit that 

has been introduced to the Witness, provided that doing so does not unreasonably delay the 

Remote Deposition. 

VII. MISCELLANEOUS PROVISIONS 

31. The Parties shall conduct a joint test of the Platform prior to the taking of 

the first Remote Deposition using that Platform. A Party that fails to participate in such 

a test waives any objections to the use of the Platform. 

32. Defending Counsel, Deposing Counsel, and the Witness shall enable both 

an audio and video connection at all times during a Remote Deposition. The audio 

connection shall be muted when appropriate, but the video connection shall remain 

active, with the camera turned on, at all times during a Remote Deposition, except 

during breaks so long as the Platform connection is maintained. 

33. If privileged information is disclosed during a Remote Deposition 

inadvertently as a result of a technical disruption or other technical issue, such disclosure 

shall not be deemed a waiver of privilege. 

34. Unless otherwise agreed by the Parties, no person may be physically located 

in the same room as the Witness during the taking of a Remote Deposition except for: (a) a 

non-attorney who is present solely for the purpose of providing technical assistance to the 

Witness in using the Platform, (b) Defending Counsel who represents a Witness, and (c) any 

Attending Counsel. Such persons must be logged onto the Platform with a separate video 

connection. At the beginning of the Remote Deposition, every person logged onto the Platform 

or otherwise viewing or listening to the deposition must be identified for the record. Any person 

joining or leaving the deposition after it begins, with the exception of Complaint Counsel and 

outside counsel for Respondents, must be identified at the time of their arrival or departure. 

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35. During a Remote Deposition, the Witness may not communicate with any 

person regarding the Witness’s testimony, except through the Platform, by any means, 

including through gestures, handwritten communications, email, chat, instant messaging, or 

text messaging. This restriction does not apply to conversations between the Witness and 

Defending Counsel during breaks or other recesses not on the record; such conversations 

can occur in breakout rooms provided by the Platform or other means, to the extent such 

breaks or recesses and any such conversations taking place during them occur in the manner 

permitted under applicable federal and local rules and procedures. Notwithstanding the 

requirements of this Paragraph, a Witness may consult privately with Defending Counsel 

for the purpose of determining whether a privilege should be asserted so long as the 

Witness or Defending Counsel states on the record that such consultation is occurring. For 

the avoidance of any doubt, and in keeping with normal deposition practice, Deposing 

Counsel, Defending Counsel, and Third-Party Counsel may engage in private 

communications or discussion amongst themselves during a Remote Deposition, using any 

appropriate means (such as email, texting, etc.). 

36. While giving testimony, the Witness may not review, read, have before 

them, or otherwise access any document, including email, text, web pages, social media, 

video, audio, or any other material, except documents presented to the Witness as exhibits 

during the Remote Deposition, without the express consent of counsel for all Parties. 

During the deposition, the Witness shall not consult any outside sources of information, 

including but not limited to, people, cell phones, smart phones, computers, the Internet, 

text or instant messaging services, emails, chats, blogs, or websites such as Twitter, 

Facebook, or LinkedIn, to obtain information in connection with his or her testimony. 

37. Based on their experience under this Remote Deposition Protocol and the 

needs of individual witnesses, (a) the Parties, or the Parties and any Third-Party Witness, 

may stipulate to modifications of this Remote Deposition Protocol applicable to an 

individual Remote Deposition; or (b) the Parties may stipulate and submit to the Court for 

its approval modifications to this Remote Deposition Protocol applicable to depositions to 

which this Remote Deposition Protocol applies. 

38. The Noticing Party shall serve a copy of this Remote Deposition Protocol 

with any subpoena for deposition testimony in this Action. 

39. All persons attending Remote Depositions are reminded that the typical rules 

of professionalism and etiquette during depositions still apply. All persons attending 

depositions taken pursuant to this Remote Deposition Protocol who do not have an 

immediate need to speak shall ensure that their telephone or video conference lines are 

muted. In addition, all persons attending depositions taken pursuant to this Remote 

Deposition Protocol shall undertake best efforts to ensure that they can do so in a space that 

is relatively free from distractions that would interfere with the deposition. 

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VIII. RESERVATION OF RIGHTS 

41. By entering into this stipulation and agreement, the Parties do not intend to limit 

their rights to seek relief from the Court if, at any time, any one or all of them determine that 

Remote Depositions are or have become impractical or prejudicial. 

42. By entering into this stipulation and agreement, the Parties do not intend for this 

stipulation to act as a waiver of any Party’s rights or protections or applicable procedures under 

either 16 CFR Part 3, Rules of Practice for Adjudicative Proceedings, or 16 CFR Part 4, 

Miscellaneous Rules, or any Order entered in the Litigation. 

Dated: February 10, 2023 Respectfully submitted, 

/s/ James H. Weingarten /s/ Beth A. Wilkinson /s/ Steven C. Sunshine 

Beth A. Wilkinson James H. Weingarten Steven C. Sunshine Wilkinson Stekloff LLP U.S. Federal Trade Commission Skadden, Arps, Slate, Meagher 

600 Pennsylvania Ave., NW 2001 M Street NW, 10th Flr, & Flom LLP 

Washington, DC 20580 Washington, DC 20036 1440 New York Avenue, NW, 

(202) 326-3570 (202) 847-4010 Washington, DC 20005 

jweingarten@ftc.gov bwilkinson@wilkinsonstekl (202) 371-7860 

off.com steve.sunshine@skadden.com 

Counsel Supporting the Counsel for Microsoft Counsel for Activision Blizzard, 

Complaint Corporation Inc. 

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