New Microsoft filing
Haven't gone through it but alot of random articles/sony slides in it to try and justify the subpoena.
Still haven't seen the judge making any orders.
I'm reading through a few pages ATM, probably over the next couple days or whatever, but already came across something kind of interesting:
SIE does not contest these custodians' relevance, resting instead on assertions of burden. Given SIE's central role, that purported burden does not warrant a motion to quash. SIE is not just any other third party; it is a first party among third parties. Nonetheless, Microsoft has attempted to assuage SIE's concerns. Microsoft has allowed SIE to use Technology Assisted Review ("TAR"), which means that SIE does not need to manually review most documents for responsiveness. And Microsoft has made compromises to decrease SIE's privilege review, such as limiting the McCurdy review to external communications.
Some of the things MS requested through the subpoena were ridiculous still IMO, but it seems like they want Sony to provide the info to a third-party source to whom Microsoft would then have the information provided from? Guess they feel having a third party middleman absolves some of the main worries about potentially sensitive information getting out in some way that MS could use against Sony (in terms of certain contracts or plans leaking out to the public way ahead of time).
I mean, in theory that would work, but the third-party acting as middleman would have to be someone not chosen by Microsoft or Sony, I feel. So who would choose who that external party actually is? FWIW it seems like they're only doing that for the McCurdy documents, not the Lin Tao or Hideaki Nishino documents.
SIE's burden arguments ring particularly hollow given Microsoft's agreement to limit review of McCurdy's files to external communications. In Forth v. Walgreen Co., the plaintiff sought to compel a third-party to produce documents from an in-house attorney. 2020 WL 4569501 (D.R.I. Aug. 7, 2020). In granting that motion, the Court explained that "[t]he usual burden of combing the production set for privilege is largely eliminated by [p]laintiffs' agreement to add search terms . . . so that only third-party communications . . . will be turned up by the searches." Id. at *3; see also Le v. Zuffa, LLC, No. 2:15-cv-01045 (D. Nev. Dec. 8, 2015) (ECF 207) (burden of privilege review limited by search methodology). The same is true here.
Again here is Microsoft saying they'd limit the McCurdy documents to an external third-party to review, I guess the assumption being that any sensitive details non-pertinent to the case would be omitted by the third-party whenever Microsoft requests the other information. I guess there is nothing wrong with this in concept but, again, who gets to decide on the external third-party to act as the middleman? And why aren't Microsoft willing to do this with Lin Tao or Hideaki Nishino reviews, too? I'm pretty sure there are sensitive non-pertinent data in their documents that Microsoft has no reason to have access to; just have a third-party source handle that and Microsoft can request the pertinent info. Easy peasy.
But we also saw some of the leaked demands from Microsoft in the earlier subpoenas and, I don't think getting info on content deals 11 years out or executive performance reviews is necessarily relevant to test out Sony's claims of potential negative financial impacts the deal would have on their platform & brand.
Requests 14(d) and 19 are in dispute only to the extent that Microsoft seeks a targeted pull of specific documents—valuations, board documents, and regulatory submissions—related to SIE's cloud-gaming acquisitions of Gaikai in 2012 and OnLive in 2015. Ex. H; Ex. I. Cloud gaming allows gamers to stream games without downloading the games to a device. The Commission alleges that cloud-gaming services comprise a relevant market and Microsoft will foreclose cloud-streaming services from licensing Activision's content. Compl. ¶¶ 83–91, 98. Providing targeted information about SIE's own cloud-gaming efforts is relevant to assessing the viability of that claim and is not unduly burdensome.
TBF, has Microsoft provided any valuation documents in relation to Game Pass & xCloud with the FTC and CMA? I think they had the figures from the CADE court documents, but they didn't isolate Game Pass or xCloud amounts out of them.
The thing is, what would Microsoft really want with Gaikai & OnLive information? The amounts Sony paid for them? I think that is already public information. The revenue? They've given PSNow revenue up until they folded it into PS+, the revenue amounts were pretty low for the service all around. The costs to operate the service? Maybe they want to extrapolate running costs for PS+ based off of that?
Going off the last line makes it sound like Microsoft wants to say they wouldn't withhold content from PS+ or its cloud streaming functionality because it isn't a relevant threat or competitor to xCloud. But xCloud isn't available on its own; you have to get Game Pass to get xCloud, and PSNow doesn't exist on its own anymore. So wouldn't MS's decision to limit content available to other subscription services be based on factoring Game Pass and therefore, in Sony's case, PS+, into that equation? It would because as part of the 10-year deal they proposed they specifically said they'd let Sony put COD into PlayStation Plus, not their own cloud service, because Sony doesn't have an individual, separate cloud streaming service.
Kind of feels like on this point Microsoft are conflating the argument; IIRC it was always about subscription gaming services, not merely cloud-streaming services. The only company somewhat relevant in these proceedings with a service focused on cloud streaming near exclusively, that's actually still around today, is Nvidia. Stadia's dead.
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Anyway, those are just some thoughts on the little I've read.
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