The federal antitrust prosecution against Google has sparked a major battle over Microsoft’s data, with the corporation now facing a subpoena for millions of records that could throw light on its efforts to compete with Google’s search engine. Microsoft could be forced to submit millions of more documents at the request of Google’s defense team after initially cooperating with prosecutors in establishing an antitrust case against the company.
Judge Amit Mehta heard arguments from both Google and Microsoft at a status hearing on Friday morning, but eventually decided that more information was needed before the court could give guidance on how much internal data Microsoft would be compelled to produce.
“These are difficult questions for any judge to resolve in a way that is impartial and meaningful,” Mehta told attorneys, “especially given that, with respect to the additional custodians, I have no notion of the volume they would produce… or what that volume would entail for the date of production.”
The Department of Justice’s antitrust complaint against Google was filed in October 2020, and it focuses on anti-competitive activity in search and search advertising, saying, among other things, that the company’s exclusivity agreements on Android and iOS kept competitors out. Separate antitrust lawsuits have been brought against Google, focused on the company’s browser privacy settings and alleged search result manipulation.
Microsoft supplied more than 400,000 documents to civil investigative demands from prosecutors before the Department of Justice filed charges. Google said in a filing prior to today’s hearing that participation entitles the business to a similar set of materials that could be useful in its defense.
In April, Google served Microsoft with a subpoena, asking for “older papers that will shed light on whether Microsoft was genuinely barred from competing with Google, or whether it just failed to compete successfully on the merits.” However, Microsoft agreed to check only eight of the 27 executives, and the search phrases to which they would be subjected were severely constrained. Google is now seeking a more powerful court order to compel Microsoft to produce documents.
Google listed 19 current and former Microsoft executives, including former Windows Phone CEO Andrew Lees and former Windows head Terry Myerson, as having conversations relevant to the issue in an annex to its filing.
“These executives address issues at the heart of the case, including the development and distribution of Microsoft’s various search engines, Microsoft’s search advertising business, and Microsoft’s effort to market devices that would provide it with yet more search access points beyond the ever-present Windows desktop,” according to the filing. “Google is just seeking discovery that corresponds to Plaintiffs’ accusations, which span two decades.”
Microsoft rebutted this rationale in its own brief, claiming that Google is pursuing unduly broad demands in order to further delay the litigation. “In fact, Google has proposed seventeen additional custodians in the last nine days,” according to Microsoft’s submission, “including nine on July 19, five on July 26, and three today, July 27.” Google has not indicated why it believes it is important to search these additional twenty-eight custodians.”
When weighing the two arguments, the court appeared to favor Google’s side of the issue significantly, but ultimately requested further information on the burden of producing the records. “The description of the people [Google] listed as extra custodians clearly struck me as not reaching,” Judge Mehta added, “and I haven’t heard Microsoft indicate today that there’s even a remote prospect that they have any responsive and relevant documents at all.”
However, the court finally determined that there was insufficient evidence on the burden of production, and the debate is expected to drag on at least until August 20th, the deadline for new filings on the matter.
Judge Mehta told the parties, “The best I can do for you today is give you a date by which to get back to me with concrete facts.”
The decision is yet another twist in what is expected to be a lengthy and acrimonious discovery process in the antitrust case. Microsoft estimates that the initial phase of its own document production will extend until at least October. The trial in the case of the United States v. Google is set to commence on September 12th, 2023.