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Microsoft is facing a subpoena for millions of documents in Google’s antitrust case

The federal antitrust case against Google has sparked a major fight over Microsoft's data. Microsoft is currently facing a subpoena to millions of documents that could reveal how it tried to compete with Google's search engine. Microsoft may be required to produce millions of additional documents after initially cooperating with the prosecutors in building an Antitrust Case against Google.

Judge Amit Mehta, who heard arguments from Microsoft and Google on Friday morning, concluded that more information was needed before the court could provide guidance on how much internal data Microsoft would need to produce.

Mehta stated that these are difficult issues that any judge must resolve in an objective and meaningful manner. "Especially so considering that, with regard to the additional custodians I don't know the volume that they would produce...or what that volume would mean for production timing."

The Department of Justice filed an antitrust case against Google in October 2020. It focuses on anticompetitive behavior and search advertising. The Department of Justice also alleges that Google's exclusive agreements on Android and iOS prevented other search engines from competing. Separate antitrust lawsuits against Google were also filed, focusing on Google's privacy settings in browsers and the alleged manipulation of search results.

Microsoft supplied more than 400,000 documents in advance of the Department of Justice bringing charges. Google claimed that participation gives the company access to similar documents to aid its defense in a filing made before today's hearing.

Microsoft is the most important third party in this litigation. Google filed a statement stating that the Colorado Complaints and DOJ have repeatedly referred to it and its products. Microsoft cannot credibly avoid significant discovery because it has so clearly pressed for and collaborated in the preparation the Complaints against Google.

In April, Google issued a subpoena for Microsoft. It was seeking "older documents that will shed some light on whether Microsoft was really restrained from competition with Google or whether it simply failed successfully to compete on the merits." However, Microsoft only agreed to search eight executives and severely limited the search terms they could use. Google now seeks a stronger court order to force Microsoft to produce documents.

Google included in its filing an appendix 19 former and current Microsoft executives that may have communications relevant to this case. These include former Windows Phone chief Andrew Lees, and former Windows head Terry Myerson.

The filing states that the executives "cover issues at the heart of the case: Microsoft's search engines development and distribution, Microsoft search advertising business and Microsoft's efforts to market devices that would allow it even more search access points beyond its ever-present Windows desktop." Google seeks to discover the truth of Plaintiffs' claims, which date back over two decades.

Microsoft countered this argument in its own filing. It claimed that Google is making unnecessarily large requests to further delay the case. Microsoft claims that Google has submitted 17 additional custodians in the last nine days. These include nine on July 19, five today, July 26, and three today on July 27. Google has not yet explained why it feels that searching for these additional 28 custodians is necessary.

After weighing the arguments, the court appeared to favor Google's side, but eventually asked for more information about the burden to produce the documents. Judge Mehta stated that "The description [Google] has given of additional custodians certainly struck my as not reaching," and that Microsoft had not yet said that they have any records that could be responsive or relevant.

The court found that there wasn't enough information regarding the burden of production. Therefore, the dispute will continue at least through August 20th. This is the deadline for any further filings.

Judge Mehta stated to the parties that "the best I can do today for you is to give you an ultimatum by which you can get back to me with specific information."

This is just one more step in what will likely be a lengthy and contentious discovery period in the antitrust case. Microsoft claims that the first stage of its document production will be completed by October this year. The trial proceedings in US v. Google will begin September 12, 2023.

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