Demartini et al v. Microsoft Corporation

Filing 294

RDER RE: JOINT DISCOVERY LETTER BRIEFS RE: WRITTEN DISCOVERY RESPONSES 292 & 293 . Signed by Judge Jacqueline Scott Corley on 11/15/2023. (ahm, COURT STAFF) (Filed on 11/15/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANTE DEMARTINI, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 3:22-cv-08991-JSC

v.
MICROSOFT CORPORATION,
Defendant.

ORDER RE: JOINT DISCOVERY
LETTER BRIEFS RE: WRITTEN
DISCOVERY RESPONSES
Re: Dkt. Nos. 292, 293

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Pending before the Court are two joint discovery letter briefs regarding the adequacy of the

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parties’ responses to each other’s written discovery requests. (Dkt. Nos. 292, 293.) Oral

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argument is not required to resolve this dispute. See Civ. L.R. 7-1(b).

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1. Microsoft’s Responses to Requests for the Production of Documents

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Plaintiffs move to compel responses to five requests for the production of documents: Nos.

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15, 16, 17, 20, and 28. (Dkt. No. 292.)
Request 15 seeks communications between six Microsoft executives regarding the merger.

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Plaintiffs argue Microsoft has refused to produce anything after February 2023. Microsoft

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disputes this characterization and indicates it “has made productions of post-February 2023

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documents and communications related to recent matters that impact the deal, including the Sony

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offer, the Nintendo contract, and the cloud streaming deals.” (Dkt. No. 292 at 4.) Microsoft also

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indicates it will make a further production of documents regarding the Ubisoft and Sony

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agreements consistent with an order recently entered in the FTC proceedings. Plaintiffs have

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made no showing as to why they are entitled to more discovery here. To the extent they have not

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already done so, Microsoft shall produce the same post-February 2023 documents to Plaintiffs as

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it has or will be producing in the FTC action. Plaintiffs’ request for anything further is denied.

Request 16 seeks communications between these same six executives regarding

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exclusivity; however, Plaintiffs make no specific argument as to what they are seeking and

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Microsoft indicates this issue was not part of the parties’ meet and confer. Plaintiffs’ request is

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therefore denied.
Request 17 seeks online posts regarding video games made by these same six executives

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Northern District of California

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for the past two years. Microsoft has provided Plaintiffs with the executives’ social media

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usernames for any accounts they used to post about work-related topics. It is not clear if Plaintiffs

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dispute the adequacy of this response; to the extent they do, they have made no showing as to why

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it is insufficient. Instead, Plaintiffs appear to seek information posted on the executives’ personal

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social media accounts, but Plaintiffs have likewise made no showing discovery of these

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individuals’ personal social media accounts would be appropriate, or even if it would be, that there

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is likely relevant discoverable material on these individuals’ personal social media accounts. And

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to the extent there might be some relevant information, digging into these executives’ personal

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social media accounts is disproportional to the needs of the case. Plaintiffs’ request is therefore

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denied.

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Request 20 seeks all data and communications regarding Plaintiffs including their gaming

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history as minors and any non-privileged communications about Plaintiffs. Microsoft indicates it

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has already produced the complete gaming data related to Plaintiffs and “on reasonable inquiry” it

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has no other non-privileged communications regarding Plaintiffs. (Dkt. No. 292 at 7.) To the

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extent Plaintiffs contend this representation is inadequate because it is not supported by a

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declaration, Federal Rule of Civil Procedure 34 does not require parties to provide a declaration in

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support of their discovery responses. Counsel has represented as officers of the court that they

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produced Plaintiffs’ gaming history. Nothing more is required.

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Request 28 seeks Microsoft’s agreements with all its cloud-gaming competitors. Plaintiffs

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concede Microsoft produced agreements with cloud-gaming competitors regarding Call of Duty

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and other Activision content, but maintain they need “other agreements” so they can assess

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whether Microsoft is leveraging its monopoly power over its Windows operating system or its

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cloud services to “control its cloud-gaming competitors.” (Dkt. No. 292 at 3.) Microsoft objects
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to producing additional agreements on relevance and burden grounds given the likelihood these

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other agreements contain confidentiality clauses with third parties. The Court denies Plaintiffs’

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request for a supplemental response without prejudice to renewal if Plaintiffs obtain testimony

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indicating Microsoft is in fact leveraging its monopoly power.

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2. Microsoft’s Responses to Interrogatory No. 4

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Plaintiffs’ request for a supplemental response to interrogatory No. 4, which seeks the

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“social media handles” of the six executives, is denied for the same reasons as their request for a

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supplemental response to request for production No. 17.

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United States District Court
Northern District of California

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3. Microsoft’s Responses to Requests for Admission
Plaintiffs seek to compel Microsoft to respond to requests for admission Nos. 6 and 7.

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(Dkt. No. 292 at 4.) The Court will not consider this request as Microsoft indicates the parties

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never met and conferred regarding this issue. (Id. at 7.)

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4. Plaintiffs’ Responses to Requests for Production

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Microsoft seeks supplemental responses to request for the production of documents Nos. 7

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and 8, which seek Plaintiffs’ communications regarding the merger and posts disseminated on the

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internet in the past two years concerning video games. (Dkt. No. 293.) As to Plaintiffs’

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communications regarding the merger, Microsoft contends Plaintiffs have only produced 10

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screenshots of text messages. Plaintiffs object to producing additional communications because

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they are “not important to resolving the issues in this case” and producing this information would

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be unduly burdensome because “the vast majority of the communications are privileged.” (Dkt.

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No. 293 at 3.) Microsoft, however, does not seek privileged communications, and

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communications between Plaintiffs go directly to their allegations of irreparable harm.

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Accordingly, Plaintiffs shall produce their non-privileged communications regarding the merger.

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As to the request for social media posts, Plaintiffs contend they have offered to produce

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their social media handles and have produced the handles for Mr. DeMartini and Mr. Owen in

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advance of their depositions. On or before November 20, 2023, Plaintiffs shall provide Microsoft

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with the social media handles for the remaining Plaintiffs.

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//
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United States District Court
Northern District of California

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5. Plaintiffs’ Responses to Interrogatories

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Microsoft seeks to compel additional responses to three interrogatories: Nos. 2, 3, and 8.

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The parties’ respective portions of the discovery letter brief do not match as to their final positions

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regarding Plaintiffs’ responses. The Court has endeavored to frame the disputes at it understands

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them below.

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Interrogatory No. 2 seeks information regarding video games Plaintiffs played over the

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last ten years. Plaintiffs indicate the parties agreed to limit this information to the last five years.

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Microsoft seeks information regarding the amount of time each Plaintiff spent playing each video

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game. Plaintiffs contend it would be “impossible” for them to answer this question, Microsoft

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already possesses playing time estimates for its own games, and Microsoft can ask Plaintiffs to

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provide their “best estimates” during their depositions. Plaintiffs offer no authority for the

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proposition Microsoft is not entitled to a written response to this questions because it can explore

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the issue during their depositions and the Court is unaware of any. Further, while Microsoft might

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have data regarding playing time on their own platforms, it has no access to this information for

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other platforms. Accordingly, Plaintiffs shall supplement their responses to the best of their

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knowledge.

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To the extent Microsoft also seeks information regarding whether Plaintiffs believe a

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particular game they played is a Triple-A game, Plaintiffs’ argument this is not relevant to any

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claims or defenses is unpersuasive. Plaintiffs’ Amended Complaint alleges Plaintiffs “would all

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be harmed by reduction in quality and output of Triple-A games because Plaintiffs are all likely to

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purchase and enjoy Triple-A games in the future.” (Dkt. No. 84 at ¶ 126.) Microsoft is entitled to

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discovery regarding whether Plaintiffs contend the games they play are Triple-A games.

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Interrogatory No. 3 seeks the dates on which Plaintiffs purchased their gaming platforms

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and the date ranges they played on each such platform. Microsoft does not indicate how Plaintiffs

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response is inadequate. Mr. DeMartini’s response, which they provide as a sample, lists the

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platforms he has owned for the last twenty years. To the extent Microsoft moves to compel the

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date range, Plaintiffs contend they have produced all information available and anything further

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would be speculation. Plaintiffs should supplement their responses to so indicate.
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Interrogatory No. 8 seeks information regarding Plaintiffs’ social media accounts. As

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ordered above, Plaintiffs shall provide Microsoft with their social media user names by November

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20, 2023.
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For any future discovery disputes, lead counsel for each party must certify they have met

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and conferred via video or in person regarding all issues raised in the discovery letter brief. In

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addition, for every category of discovery sought, each party shall state their last offer during the

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meet and confer.

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This Order disposes of Docket Nos. 292, 293.
IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: November 15, 2023

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JACQUELINE SCOTT CORLEY
United States District Judge

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