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 DENYING MOTION OF RESPONDENT MICROSOFT CORP. TO CERTIFY

REQUEST FOR COURT ENFORCEMENT OF SUBPOENA DUCES TECUM

I.

On December 21, 2023, Respondent Microsoft Corp. (“Microsoft”) filed a motion 

requesting the Administrative Law Judge to certify to the Federal Trade Commission

(“Commission”) Microsoft’s request that the Commission seek a court order to enforce a 

subpoena duces tecum issued by Microsoft to nonparty Sony Interactive Entertainment LLC 

(“SIE”) (“Motion to Certify”). SIE filed an opposition to the Motion to Certify on January 2, 

2024 (“Opposition”).0F

1

 For the reasons set forth below, Microsoft’s Motion to Certify is 

DENIED.

II.

On December 8, 2022, the Commission issued an administrative complaint seeking to 

enjoin Microsoft from acquiring Activision (the “Transaction”). Pursuant to the Scheduling 

Order issued in this case on January 4, 2023, fact discovery closed on April 7, 2023. 

In a related preliminary injunction action filed in federal court by the Federal Trade 

Commission (“FTC”) under Section 13(b) of the FTC Act, the United States District Court for 

the Northern District of California denied the FTC’s request for a preliminary injunction; the 

1 Complaint Counsel filed a motion for leave to file an opposition to the Motion to Certify, together with its 

proposed opposition, on January 2, 2024. On January 4, 2024, Microsoft filed an opposition to Complaint Counsel’s 

motion for leave, requesting in the alternative that, if Complaint Counsel is permitted to file an opposition to the 

Motion to Certify, Microsoft be granted leave to file a reply in support of the Motion to Certify. Respondent’s 

Motion to Certify is being denied herein upon consideration of the Motion to Certify and SIE’s Opposition. 

Therefore, both Complaint Counsel’s and Microsoft’s motions for leave are DENIED as moot.

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FTC appealed that decision to the United States Court of Appeals for the Ninth Circuit; and that 

appeal is still pending. FTC v. Microsoft Corp., 2023 U.S. Dist. LEXIS 119001 (N.D. Cal. July 

10, 2023). On October 13, 2023, Microsoft and Activision closed the Transaction. 

Although the Commission had withdrawn the matter from adjudication pursuant to 16 

C.F.R. § 3.26(c), on September 26, 2023, the Commission returned this matter to adjudication 

and set the evidentiary hearing to commence twenty-one days after the Ninth Circuit issues its 

opinion on the appeal of the district court decision. In re Microsoft Corp. & Activision Blizzard, 

Inc., 2023 WL 6389836 (F.T.C. Sept. 26, 2023). 

On October 10, 2023, Complaint Counsel moved to reopen fact discovery for the purpose 

of obtaining discovery into certain agreements executed by Respondents after the close of 

discovery (“Motion to Reopen”). Specifically, Complaint Counsel requested an order allowing it, 

inter alia, “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 July 15, 2023 agreement between Microsoft Corp. and Sony Interactive 

Entertainment LLC.”1F

2

 Complaint Counsel’s Motion to Reopen, Proposed Order at 1-2. 

Respondent Microsoft filed an opposition to the Motion to Reopen, in which Microsoft opposed 

discovery on the grounds that the Sony Agreement “speaks for itself.” Microsoft’s Opposition to 

Motion to Reopen at 3. Microsoft argued that this Court should not permit what it characterized 

as “burdensome discovery” into a closed acquisition. Id. at 1. 

By Order issued on October 26, 2023, Complaint Counsel’s Motion to Reopen was 

granted in part (“October 26 Order”). The October 26 Order determined that the Sony 

Agreement is relevant within the meaning of the discovery rules because Microsoft “intends to 

offer [it] into evidence at the evidentiary hearing to support its defense”; (2) Complaint Counsel 

was not, in the exercise of due diligence, able “to undertake discovery into the agreement[] prior 

to the discovery deadline because [it was] not executed until months after the [discovery] 

deadline”; and (3) reopening discovery for the limited period requested would not risk delaying 

the evidentiary hearing. The October 26 Order granted Complaint Counsel leave to serve 

discovery requests and subpoenas duces tecum and ad testificandum “for the purpose of taking 

discovery relevant to the . . . Sony Agreement[.]” 

 Pursuant to the October 26 Order, on November 1, 2023, Complaint Counsel served SIE 

with subpoenas seeking documents and testimony regarding the Sony Agreement. SIE responded 

to Complaint Counsel’s subpoenas by producing approximately 50 documents on November 21, 

2023, and offering a corporate designee for deposition. Thereafter, Microsoft was provided with 

a copy of the November 21 discovery and arranged to participate in the corporate deposition of 

SIE. On December 12, 2023, Microsoft served a subpoena on SIE seeking production of 

documents from six SIE custodians, designated by Microsoft, using search terms designated by 

Microsoft. SIE declined to comply with Microsoft’s December 12 document subpoena, asserting, 

2 Microsoft’s agreement with SIE, executed on July 15, 2023 (the “Sony Agreement”), purports to offer the video 

game series “Call of Duty” on PlayStation and PlayStation Plus (SIE’s video game subscription service). Complaint 

Counsel also sought discovery related to Respondents’ agreement with Ubisoft Entertainment SA, executed on 

August 21, 2023.

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among other reasons, that the subpoena was issued after the close of fact discovery and therefore 

not properly authorized. 

III. 

FTC Rule 3.38(c) states that “in instances where a nonparty fails to comply with a 

subpoena or order, the [Administrative Law Judge] shall certify to the Commission a request that 

court enforcement of the subpoena or order be sought.” 16 C.F.R. § 3.38(c); see also In re 

Illumina, Inc., 2021 WL 3803658, at *4 (F.T.C. Aug. 17, 2021) (granting respondents’ motion to 

certify district court enforcement of subpoenas issued to a nonparty). 

As noted above, fact discovery in this matter closed on April 7, 2023. Microsoft did not, 

prior to issuing its subpoena to SIE, request that discovery be reopened to allow Respondents to 

take discovery regarding the Sony Agreement. Nor is there anything in the October 26 Order that 

granted Respondents leave to take such discovery. Rather, on its own volition, Microsoft served 

its subpoena on SIE on December 12, 2023. Because the subpoena served on SIE by Microsoft 

was not authorized, SIE’s failure to comply is not properly the subject of court enforcement. 

Accordingly, Respondent’s Motion to Certify is DENIED.

ORDERED: 

 D. Michael Chappell

 Chief Administrative Law Judge 

Date: January 8, 2024 

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