The sweeping federal antitrust case against Google has sparked a significant battle over data held by Microsoft, and the company is now facing a subpoena for millions of documents that could shed light on its attempts to compete with Google’s search engine. After Microsoft initially cooperated with prosecutors in filing an antitrust suit against Google, Microsoft could be required to produce millions of additional documents at the request of Google’s defense team.
At a status hearing Friday morning, Judge Amit Mehta heard arguments from both Google and Microsoft on the matter, but ultimately felt more information was needed before the court could advise on how much internal data Microsoft should produce.
“These are difficult issues for any judge to resolve in an objective and meaningful way,” Mehta told lawyers, “and it’s especially so given that, in regards to the additional custodians, I have no idea of the volume that would produce… or what that volume would mean for the timing of production.”
Filed October 2020, the Justice Department’s antitrust case against Google focuses on anti-competitive behavior in search and search advertising, alleging, among other things, that the company’s exclusivity agreements on Android and iOS exclude competing search engines. Separate antitrust cases have also been filed against Google targeting the company’s browser privacy settings and alleged manipulation of search results.
Prior to filing charges by the Department of Justice, Microsoft provided more than 400,000 documents to prosecutors’ civil investigation demands. In an application for today’s hearing, Google argued such participation entitles the company to a similar set of documents that may be useful for its defence.
“No third party is more at the center of this lawsuit than Microsoft. DOJ and Colorado complaints refer to the product or its products dozens of times,” Google’s filing reads. “Having so clearly urged and co-operated in the preparation of the current Complaints to be brought against Google, Microsoft cannot credibly prevent a significant discovery from being made in these cases.”
Google first issued a subpoena to Microsoft in April, looking for “older documents that will shed light on whether Microsoft was actually prevented from competing with Google, or if it simply wasn’t successful on the merits.” But Microsoft agreed to search only eight of the 27 executives, drastically limiting the search strings they would be subjected to. Google is now asking for a stronger court order to force production of documents from Microsoft.
In an appendix to the filing, Google listed 19 current and former Microsoft executives who may have communications relevant to the case, including former Windows Phone chief Andrew Lees and former Windows chief Terry Myerson.
“These executives are addressing issues that are at the heart of the matter: the development and distribution of Microsoft’s various search engines, Microsoft’s search advertising business, and Microsoft’s efforts to market devices that would give it even more search entry points beyond the ever-present existing Windows desktop,” the file reads. “Google is simply seeking discovery consistent with plaintiffs’ claims, going back two decades.”
In his own fileMicrosoft argued against this logic, arguing that Google is making unnecessarily broad requests in an attempt to further delay the matter. “In the past nine days, Google has even done 17 additional custodians,” Microsoft claims, “including nine on July 19, five on July 26, and three today, July 27. Google has not explained why it believes the search for these additional twenty-eight custodians … is necessary.”
Weighing the two arguments, the court seemed to favor somewhat Google’s side of the case, but ultimately asked for more details on the burden needed to produce the documents. “The description of the people [Google has] identified as additional custodians certainly seemed out of reach,” Judge Mehta said, “and I haven’t heard Microsoft say today that there’s a minimal chance they probably have records that are responsive and relevant.”
However, the court ultimately found that there was insufficient information about the burden of production, and the dispute is likely to continue at least until August 20, the deadline for further submissions on the subject.
“The best I can do for you today is to give you a deadline within which you can call me back with concrete information,” Judge Mehta told the parties.
The finding is a new twist in what will likely be a long and contentious discovery period for the antitrust case. Microsoft says it believes the first phase of its own document production will last until at least October of this year. Process for US vs Google are scheduled to begin on September 12, 2023.