Sony has spent a lot of time trying to convince regulators that Microsoft’s acquisition of Activision Blizzard should be blocked, citing problems that include lack of parity with Call of Duty, but now it seems that the company may end up, as Xbox fans like to say, huge hypocrites. Following its subpoena to Sony earlier this year for confidential documents, a judge has now ruled that Microsoft can not only view what kind of exchanges Sony has had with regulators regarding the Activision deal, but also details of Sony’s own exclusivity agreements with game publishers since 2019. According to a filing from the FTC, one of the arguments that Sony made was that providing the files would be too time-consuming and expensive.
From an FTC filing:
On January 17, 2023, Microsoft served a subpoena duces tecum on SIE, containing 45 document requests (“Subpoena”). On January 23, 2023, SIE provided written responses and objections to the Subpoena. SIE and Microsoft met and conferred regarding SIE’s objections on five occasions.
Microsoft argues that SIE’s video game business is integral to Complaint Counsel’s theory of anticompetitive harm in this case and that SIE documents and data are central to the issues presented in this litigation. In general, SIE does not contest the relevance of the information sought but resists discovery primarily on the ground that searching for and producing the disputed data and documents is unduly burdensome. Microsoft responds that SIE has failed to demonstrate that complying with the requested discovery presents any undue burden, particularly considering the relevance of SIE’s video game business to this proceeding.
The nature and extent of SIE’s content-licensing agreements are relevant to the
Complaint’s allegations of exclusivity arrangements between video game console developers and video game developers and publishers. […] In addition, the alleged burden of having to review an excessive volume of contracts is materially decreased because […] the applicable date range will be limited to January 1, 2019 to the present. Moreover, it is logical to assume that SIE can determine the names of those companies with which it has content-licensing contracts and frame its digital record search accordingly to minimize the need for a manual search of all its contract records.