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Microsoft is Facing a Subpoena in Google’s Antitrust Case

The federal antitrust case against Google has given rise to a significant fight 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.

At a status hearing on Friday morning, Judge Amit Mehta heard arguments from both Google and Microsoft on the issue, but ultimately found more information was required before the court could give guidance as to how much internal data Microsoft would be required to produce.

Mehta told attorneys, “These are hard issues for any judge to resolve in a way that’s objective and meaningful, and that’s particularly so given that, with respect to the additional custodians, I don’t have any sense of the volume that would produce … or what that volume would mean for the timing of production.”

Having initially cooperated with prosecutors in building an antitrust case against Google, Microsoft could be obligated to produce millions more documents at the request of Google’s defense team. Separate antitrust cases against Google have also been filed focusing on the company’s browser privacy settings and alleged manipulation of search results.

In advance of the Department of Justice filing charges, Microsoft provided more than 400,000 documents to civil investigative demands from prosecutors. In a filing before Friday’s hearing, Google argued that participation entitles the company to a similar range of documents that might be helpful to its defense.

Google first issued a subpoena to Microsoft in April, seeking “older documents that will shed light on whether Microsoft was actually restrained from competing with Google, or whether it simply failed to compete successfully on the merits.” But Microsoft agreed to only eight of the 27 executives to be searched, and drastically limited the search strings to which they would be subject. Google is now asking for a more powerful court order to compel the production of documents from Microsoft.

Google’s filing reads, “No third party is more central to this litigation than Microsoft. The DOJ and Colorado Complaints refer to it or its products dozens of times. Having so obviously pressed for and cooperated in the preparation of the present Complaints to be filed against Google, Microsoft cannot credibly avoid significant discovery in these cases.”

Weighing the two arguments, the court seemed to slightly favor Google’s side of the case, but ultimately asked for more data on the burden required to produce the documents. “The description of the people [Google has] identified as additional custodians certainly struck me as not reaching,” Judge Mehta said, “and I haven’t heard Microsoft say today that there’s minimal chance that they’re likely to have records at all that are responsive and relevant.”

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