Federal Trade Commission v. Microsoft Corporation

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA FEDERAL TRADE COMMISSION, Case No. 23-cv-02880-JSC 8 Plaintiff, ORDER RE: ADMINISTRATION 9 v. MOTIONS TO SEAL PARTIES’ BRIEFING 10 MICROSOFT CORPORATION, et al., Defendants.

13 The parties to this action, Plaintiff Federal Trade Commission (“FTC”), and Defendants, Microsoft Corporation (“Microsoft”) and Activision Blizzard, Inc. (“Activision”), have filed numerous administrative motions to seal portions of their own and non-parties (together, “designating parties”) confidential or highly confidential material. In particular, this Order addresses the parties’ requests to seal: the pre and post-trial Findings of Fact and Conclusions of Law, the FTC’s bench brief, Defendants’ answers, and the filings related to the FTC’s emergency motion. (Dkt. Nos. 11, 12, 34, 35, 109, 110, 132, 178, 179, 180, 274, 287, 288, 308, 311, 312, 336.1) To the extent possible, the Court has resolved these pending motions as set forth in Exhibit A to this Order. However, many of the requests for sealing are overbroad as much of the material designating parties’ have requested to seal is now public. As set forth below, the Court denies these overbroad requests to seal without prejudice. The designating parties may renew these requests to seal in a more narrowly tailored request for sealing within two weeks of this Order.

1 LEGAL STANDARD 2 There is a right of public access to judicial records and documents. Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). In considering motions to seal, courts recognize “a strong presumption in favor of access is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (cleaned up). Parties seeking to seal judicial records relating to motions that are “more than tangentially related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016), bear the burden of overcoming the presumption with “compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process,” Kamakana, 447 F.3d at 1178–79 (cleaned up). The Court must “conscientiously balance[ ] the competing interests of the public and the party who seeks to keep certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at 13 1097 (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

14 A request to seal may be supported by compelling reasons if the documents or portions of documents at issue are “sources of business information that might harm a litigant’s competitive standing.” Ctr. for Auto Safety, 809 F.3d at 1097 (citation omitted); Nixon, 435 U.S. at 598.

17 Compelling reasons may justify sealing court records “when such ‘court files might have become a vehicle for improper purposes’” such as releasing trade secrets. Kamakana, 447 F.3d at 1179.

19 For example, sealing court records may be justified if the records would divulge terms of confidential contracts or contract negotiations, financial terms, or business models and strategies.

21 See Exeltis USA Inc. v. First Databank, Inc., No. 17-cv-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020); FTC v. Qualcomm Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3, 2019). But “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179.

26 Designating parties moving to seal their own or another party’s materials must comply with Civil Local Rule 79-5. The rule supplements the “compelling reasons” standard. Scramoge 2023). “Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” Civil L.R. 79-5(c). Parties’ requests must be “narrowly tailored to seal only the sealable material.” Id. at 79-5(c)(3). Requests need to include “a specific statement” with the reasons for keeping a document under seal and explain the interests warranting sealing, the injury that will result without sealing, and why a less restrictive alternative is not sufficient. Id. at 79- 5(c)(1). Under Civil Local Rule 79-5(f), designating parties must file a statement or response to a motion to seal a designating party’s materials in accordance with Civil Local Rule 79-5(c) or its materials may be unsealed.

10 The Court considers a more lenient approach when considering non-party sealing requests, but this distinction is not dispositive. See Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640- YGR, 2021 WL 1925460, at *1 (N.D. Cal. Apr. 30, 2021) (balancing confidentiality of non-party information “with the [c]ourt’s ultimate resolution of the instant dispute which should be transparent in its analysis”).

15 DISCUSSION 16 The “compelling reasons” standard applies to these sealing motions. The briefing at issue in these motions is more than tangentially related to the merits of the case as it was filed in the context of the FTC’s dispositive preliminary injunction motion. See Ctr. for Auto Safety, 809 F.3d 19 at 1101; Meyers v. Kaiser Found. Health Plan, Inc., No. 17-cv-04946-LHK, 2019 WL 120657, at *2 (N.D. Cal Jan. 6, 2019). Nintendo’s argument that the “good cause” standard applies to the bench brief, is unpersuasive. Where, as here, an evidentiary motion is strongly correlated to the merits of a case, the compelling reasons standard applies. Ctr. for Auto Safety, 809 F.3d at 1099.

23 I. Parties’ Final Proposed Findings of Fact and Conclusions of Law 24 Given the expedited timeframe for these proceedings, the Court permitted the FTC and Defendants to file their final proposed findings of fact and conclusions of law (“post-trial FOF- COL”) entirely under seal. (See Dkt. No. 286, 6/29/23 Tr. at 1171:1-5; Dkt. Nos. 291, 292, 293.)

27 The Court now addresses the designating parties subsequently filed requests to seal portions of the post-trial FOF-COL. (Dkt. Nos. 308, 311, 312.) The Court’s rulings are discussed below and in the attached chart. See Ex. A.

3 As set forth in Exhibit A, the Court has denied the requests in whole or in part where the designating parties did not meet their burden to show that the at-issue portion of the parties’ post- trial FOF-COL could reveal competitively damaging information sufficient to outweigh the public’s presumption of public access to judicial records. Kamakana, 447 F.3d at 1178–79; Epic Games, Inc., 2021 WL 1925460, at *1, 4. The Court also denied the request where the designating party did not submit a declaration is support of sealing.

9 The Court has considered Nintendo’s argument that the FTC “misstates” or “mischaracterizes” its exhibits in its post-trial FOF-COL in such a way as to lead to a false impression that Nintendo supports the statement which could cause Nintendo competitive, reputational, and economic harm given the public scrutiny of the proceedings. (Dkt. No. 328 at 5.)

13 After reviewing the FTC’s briefing and the exhibits at issue, the Court finds Nintendo’s disagreements with the FTC’s assertions are not a compelling reason to seal that part of the record.

15 The contents of the post-trial FOF-COL are attorney argument and the evidence underlying the statements in the brief speak for itself.

17 Microsoft seeks to seal portions of the FTC’s post-trial FOF-COL and Defendants seek to seal portions of their own post-trial FOF-COL. (Dkt. Nos. 311, 331.) The Court denies these requests in full without prejudice because the portions Microsoft seeks to seal are not narrowly tailored as required by Civil Local Rule 79-5(c). For example, Defendants seek to seal materials discussing Professor Lee’s modeling, which was publicly disclosed in this litigation before the FOF-COL were filed. (See, e.g., Dkt. No. 308-2 ¶ 499.) Because the Court denies these requests without prejudice, they may be narrowly tailored and renewed within 14 days of this Order.

24 II. Parties’ Pre-Trial Proposed Findings of Fact and Conclusions of Law 25 The FTC and Defendants filed their pre-trial proposed findings of fact and conclusions of law (“pre-trial FOF-COL”) prior to the start of the evidentiary hearing. The FTC only filed a redacted version without an accompanying motion to seal another party’s materials. (Dkt. No. and the designating parties have responded (Dkt. Nos. 338, 340, 341, 342, 345, 346.) The Court’s rulings are discussed below and in the attached chart. See Ex. A.

3 As set forth in Exhibit A, the Court has denied the requests in whole or in part where the designating parties did not meet their burden to show that the at-issue portion of the parties’ pre- trial FOF-COL could reveal competitively damaging information sufficient to outweigh the public’s presumption of public access to judicial records. Kamakana, 447 F.3d at 1178–79; Epic Games, Inc., 2021 WL 1925460, at *1, 4. The Court also denied the request where the designating party did not submit a declaration is support of sealing. To the extent any party seeks sealing of a citation to a redacted document, this request is denied. A citation, by itself, does not reveal any confidential information.

11 Nintendo’s request for sealing based on the argument that the FTC “mischaracterized” its exhibits is denied for the reasons stated in Section I. (Dkt. No. 342 at 4, 6-7.)

13 The Court denies Microsoft’s requests to seal portions of the FTC’s pre-trial FOF-COL in full without prejudice because the portions Microsoft seeks to seal are not narrowly tailored as required by Civil Local Rule 79-5(c). (Dkt. No. 346.) Because the Court denies these requests without prejudice, they may be tailored and renewed within 14 days of this Order.

17 III. FTC’S Bench Brief 18 Microsoft seeks to seal material in the FTC’s bench brief, but Microsoft has not met its burden to proffer competitive harm because no business information is included in its proposed redactions. (See Dkt. No. 289.) For example, each portion of deposition testimony Microsoft seeks to seal includes interjections by Microsoft’s attorneys regarding privilege and non-answers from the deponents to that effect. (See Dkt. No. 180-2 at 2:8-13; id. at 2:14-3:8; id. at 9-14.) The Court’s rulings are reflected in the attached chart. See Ex. A.

24 IV. Activision’s Answer 25 The Court’s ruling on Activision’s narrowly tailored request to seal certain material in in its answer is reflected in the attached chart. (Dkt. No. 274.)

V. Remaining Briefing Upon review of the remaining motions to seal, the Court finds much of the designated- confidential material parties and non-parties request to seal has now been discussed in open court during the evidentiary hearing. Accordingly, the Court DENIES the pending motions to seal portions of the FTC’s complaint, the FTC’s emergency motion, Defendants’ opposition, the FTC’s reply, and Microsoft’s answer without prejudice to renewal in a more narrowly tailored form. (Dkt. Nos. 11, 12, 34, 35, 109, 110, 132, 287, 288.) To streamline the Court’s review, designating parties may file a single joint omnibus with their narrowly tailored and renewed requests regarding these documents within 14 days of this Order. To the extent the parties seek sealing of exhibits attached to these filings which were used at the subsequent evidentiary hearing or relied on in this Court’s preliminary injunction opinion, the request for sealing is DENIED consistent with this Court’s prior order regarding trial exhibits. (See Dkt. No. 335.)

The Court GRANTS requests to seal portions of or entire exhibits attached to parties’ pre- trial briefing that were not used during the evidentiary hearing or in this Court’s opinion, to the extent requested by the designating parties and supported by their filings. (See Dkt. No. 335.)

The protection of parties’ confidential and sensitive information outweighs the public’s presumption of access to those judicial records where they did not significantly factor into this Court’s analysis. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (finding parties’ compelling reasons for sealing can outweigh the public interest in disclosure when court files might become a vehicle for improper purposes); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (finding compelling reasons to seal “sources of business information that might harm a litigant’s competitive standing”).

CONCLUSION In conclusion, within 14 days of the date of this Order: 1) Microsoft may file a narrowly tailored, renewed administrative motion to seal to its own material in the FTC’s post-trial FOF-COL and pre-trial FOF-COL as specified in Sections I & II; ] 2) Microsoft and Activision may file narrowly tailored, renewed administrative motions 2 to seal to their material in Defendants’ post-trial FOF-COL as specified in Section I; 3 3) the designating parties may submit an omnibus, narrowly-tailored, renewed request for 4 sealing of material as specified in Section V. 5 As set forth in Section V, the Court GRANTS in part the sealing of parties’ exhibits || attached to their briefing.

7 The Court’s remaining rulings are reflected in the attached chart. See Ex. A.

8 If no renewed motions are filed, then the moving party shall publicly file versions of these || documents pursuant to this Order and Civil Local Rule 79-5(g) within 21 days of this Order.

10 This Order disposes of Docket Nos. 11, 12, 34, 35, 109, 110, 132, 178, 179, 180, 207, 274, |} 287, 288, 291, 292, 293, 308, 311, 312, 336.

E 13 IT IS SO ORDERED.

14 || Dated: August 11, 2023 15 16 Deguin st □ JAQQUELINE SCOTT CORL 17 United States District Judge EXHIBIT A2 FTC’S Final Post-Trial Proposed Findings of Fact and Conclusions of Law 2 (Dkt. No. 308-2) Designating Highlighted Portions of Pages Reasons Proffered for Ruling on 3 Party and Lines Requested to be Sealing Motion Sealed by Designating Party Activision 13:2, 15:27, 24:14-16, 25:28, Non-public and highly GRANTED 26:1-3, 26:15-19, 27:2, 44:10- sensitive information only as 5 12, 46:27-47:3*3, 51:1-2, 52:1- including business strategy, consistent with 2, 52:21-24, 53:12-13, 53:22- decision making, market the redactions 6 23, 54:27-55:1, 55:12, 86:23- share analysis, competitive proposed in Dkt.

24, 88:4-15, 88:27, 89:3, 89:5- analysis, agreements and No. 323.

7 7, 89:11-12, 90:1-4, 90:24, negotiations, and revenue 91:2, 91:5-6, 93:4-7, 93:9-10, figures, which could be 8 98:27-28, 99:1-4, 101:17, used to injure Activision if 101:25-26, 102:1, 109:14, made publicly available.

9 110:13, 133:19-22, 134:21-25, (Dkt. No. 323.)

134:28-135:1, 135:8-11, 10 135:16-18, 136:11-13, 136:21- 25, 142:1-2, 144:3-4, 150:5-9, 11 151:16-17, 155:27-156:2, 161:19-22, 161:24-25 12 Activision 51:27-28, 55:13, 56:22 Non-public and highly DENIED. sensitive information Information has 13 including business strategy, been publicly decision making, market discussed in the 14 share analysis, competitive course of these analysis, agreements and proceedings.

15 negotiations, and revenue figures, which could be 16 used to injure Activision if made publicly available.

17 (Dkt. No. 323.)

Activision 135:4, 53:1-7 Non-public and highly Activision has 18 sensitive information not shown that including business strategy, this is its 19 decision making, market material. share analysis, competitive GRANTED 20 analysis, agreements and insofar as negotiations, and revenue requested by 21 figures, which could be Nvidia. (See used to injure Activision if Dkt. No. 322.)

22 made publicly available. (Dkt. No. 323.)

Activision 136:14-17 Non-public and highly DENIED. sensitive information Activision did including business strategy, not meet its decision making, market burden to show share analysis, competitive competitive analysis, agreements and harm.

2 Page citations in this chart are to the page number appearing at the bottom of the document, not negotiations, and revenue 1 figures, which could be used to injure Activision if 2 made publicly available. (Dkt. No. 323.)

3 Sony 12:23-25, 27:9-13, 34:26-27, Non-public Sony data, GRANTED 57:15-16, 57:18-19, 57:21, analysis, and survey results only as 4 57:23, 58:2, 63:8-11, 63:18-21, relating to product strategy consistent with 64:10-13, 64:17-24, 87:14-18, and platform users’ the redactions 5 87:20-21, 87:25, 89:10-13, behavior on Sony’s proposed in Dkt.

90:13, 95:4-8, 95:22-26, platform, including user No. 330.

6 114:16-17, 133:4, 142:27-143:1 engagement, gameplay, spend, likelihood of 7 switching, or potential competitive impacts of the 8 at-issue acquisition that could competitively harm 9 Sony if publicly disclosed. (Dkt. No. 330.)

10 Sony 4:15-20, 51:19-26, 111:9-10, Non-public information GRANTED 159:16-19, 159:21-160:2, about Sony’s approach to only as 11 160:3-14, 160:15-19, 160:23-24 contract negotiations with consistent with third party partners and the redactions 12 discussions of particular proposed in Dkt. contract terms with No. 330.

13 particular partners that could competitively harm 14 Sony if publicly disclosed. (Dkt. No. 330.)

15 Sony 2:12-14, 2:23-24, 129:15-17, Non-public information on GRANTED 138:28*-139:1, 140:23, 141:1 the nature and scope of only as 16 (after “offer”) Sony’s technical consistent with collaboration with the redactions 17 particular publishers that proposed in Dkt. could competitively harm No. 330.

18 Sony if publicly disclosed. (Dkt. No. 330.)

19 Sony 8:22-25, 29:17-20, 30:14-16, Non-public information GRANTED 39:10-11, 39:15-20, 48:26-49:1, about Sony’s business only as 20 49:23-25, 56:12-16, 60:3-6, strategies, competitive consistent with 71:10-17, 138:10-14, 140:18- business plans, future the redactions 21 20, 141:8-10 investment plans, console proposed in Dkt. and product development No. 330.

22 plans, product roadmaps, innovation plans that could 23 competitively harm Sony if publicly disclosed. (Dkt.

24 No. 330.)

Sony 56:12-16, 65:6-9, 67:25, 68:1, Non-public Sony business GRANTED 141:17-20 analysis regarding only as competitors’ and consistent with commercial partners’ the redactions behavior and products that proposed in Dkt. could competitively harm No. 330.

Nintendo ¶¶ 74, 82, 84, 85, 95, 304, 309, Confidential specific GRANTED 1 328, 329, 705, 706, 708, 756, market strategy, only as 758-61, 764 confidential agreements consistent with 2 and negotiations, the redactions competitive analysis, and proposed in Dkt.

3 market share information No. 328. that would allow insight 4 into Nintendo’s market position or give 5 competitors an advantage with Nintendo’s 6 information if publicly disclosed. (Dkt. Nos. 168, 7 219, 328.)

Nintendo ¶¶ 308, 315 Information that misstates DENIED.

8 or mischaracterizes the Nintendo did not cited exhibit where public meet its burden 9 disclosure would result in a showing false impression that competitive 10 Nintendo supports the harm. statement, which would 11 result in competitive, reputational, and economic 12 harm given the public scrutiny of the proceedings.

13 (Dkt. No. 328.)

Valve 142*:24-25, 68:5 Confidential Valve sales GRANTED.

14 and financial information that could competitively 15 harm Valve if disclosed. (Dkt. No. 319.)

16 Nvidia 5:3-7, 40:2-5, 56:19-21, 75:19- Non-public business GRANTED 22, 111:25-28, 134:15-19, information and only as 17 134:21-25; 134:27-135:1, agreements from sealed consistent with 135:3-5, 137:26-27, 142:1-2, exhibits that would reveal the redactions 18 142:4-7, 145:4-5, 154:3-4, Nvidia’s decision-making proposed in Dkt.

157:11-12, 161:16-25 processes and business No. 322.

19 relationships and agreements that would 20 competitively disadvantage Nvidia if publicly 21 disclosed. (Dkt. No. 322.)

Google N/A Designated as confidential. DENIED. Party 22 (Dkt. No. 308.) did not file a statement in 23 support of sealing.

Amazon N/A Designated as confidential. DENIED. Party (Dkt. No. 308.) did not file a statement on support of sealing.

Defendants’ Final Post-Trial Proposed Findings of Fact and Conclusions of Law 1 (Dkt. No. 311-2) Designating Highlighted Portions of Pages Reasons Proffered for Ruling on 2 Party and Lines Requested to be Sealing Motion Sealed by Designating Party 3 Sony 16:25-26, 28:15-16, 64:8-9, Non-public Sony data, GRANTED 64:14-21, 86:9-11, 86 n.15, analysis, and survey results only as 4 108:6-9, 108:21-23, 122:25- relating to product strategy consistent with 123:1 and platform users’ the redactions 5 behavior on Sony’s proposed in Dkt. platform, including user No. 330.

6 engagement, gameplay, spend, likelihood of 7 switching, or potential competitive impacts of the 8 at-issue acquisition that could competitively harm 9 Sony if publicly disclosed. (Dkt. No. 330.)

10 Sony 29:19-22, 30:25 (after Non-public information GRANTED “franchises”)-31:2, 42:18-25, about Sony’s approach to only as 11 48:20-23, 50:19, 50:26, 51:6, contract negotiations with consistent with 51:7-24, 52:9-12 third party partners and the redactions 12 discussions of particular proposed in Dkt. contract terms with No. 330.

13 particular partners that could competitively harm 14 Sony if publicly disclosed. (Dkt. No. 330.)

15 Sony 30:24-25 (before and including Non-public information DENIED. “franchises”) about Sony’s approach to Information has 16 contract negotiations with been publicly third party partners and discussed in the 17 discussions of particular course of these contract terms with proceedings.

18 particular partners that could competitively harm 19 Sony if publicly disclosed. (Dkt. No. 330.)

Sony 22:8-10, 29:19-20, 99:21-23, Non-public information GRANTED in 121:19-23 about Sony’s business part. Denied in strategies, competitive part as to any business plans, future portions Sony investment plans, console did not request and product development to seal. (See plans, product roadmaps, Dkt. No. 330.) innovation plans that could competitively harm Sony if publicly disclosed. (Dkt.

No. 330.)

Sony 28:2-5, 64:22-24, 86:19-22 Non-public Sony business GRANTED analysis regarding only as competitors’ and consistent with commercial partners’ the redactions Sony if publicly disclosed.

1 (Dkt. No. 330.)

Sony 28:21 Non-public Sony business DENIED. Sony 2 analysis regarding did not meet its competitors’ and burden showing 3 commercial partners’ competitive behavior and products that harm.

4 could competitively harm Sony if publicly disclosed.

5 (Dkt. No. 330.)

Nvidia 24:4 Non-public sensitive GRANTED.

6 financial information from sealed exhibit that would 7 reveal Nvidia’s finances and business decision- 8 making that would competitively disadvantage 9 Nvidia. (Dkt. No. 322.)

Nintendo 57:23-24, 57:27, 58:1-5, 58:10- Non-public sensitive future GRANTED.

10 13, 92:2-3, 142:5-15 business strategy and confidential agreements 11 and negotiations that would competitively harm 12 Nintendo by giving competitors an advantage.

13 (Dkt. Nos. 219, 329.)

FTC’S Proposed Pre-Trial Findings of Fact and Conclusions of Law (Dkt. No. 336-2) Designating Highlighted Portions of Pages Reasons Proffered for Ruling on Party and Lines Requested to be Sealing Motion Sealed by Designating Party Activision 7:20-22, 8:23-26, 9:8-14, 9:24, Non-public and highly GRANTED 24:4-8, 26:7-8, 41:19-22, sensitive information only as 49:1-8, 49:10-12, 49:23-50:1, including business strategy, consistent with 51:19-22, 56:26-57:2, 77:17-20, decision making, market the redactions 78:14-16, 78:18-21, 78:23-25, share analysis, competitive proposed in Dkt.

79:11-17, 82:24-25, 84:16-17, analysis, agreements and No. 341.

87:18-23, 89:14-17 negotiations, and revenue figures, which could be used to injure Activision if made publicly available. (Dkt. No. 341.)

Activision 27:10, 28:6 Non-public and highly DENIED. sensitive information Information has including business strategy, been publicly decision making, market discussed in the share analysis, competitive course of these analysis, agreements and proceedings. negotiations, and revenue figures, which could be used to injure Activision if made publicly available. (Dkt. No. 341.)

Activision 28:27, 29:1-2, 29:4, 29:6, Non-public and highly Activision has 51:5-6, 51:8-9 including business strategy, this is its 1 decision making, market material. share analysis, competitive GRANTED 2 analysis, agreements and only insofar as negotiations, and revenue requested by 3 figures, which could be Sony, (see Dkt. used to injure Activision if No. 345), or 4 made publicly available. Microsoft. (Dkt. No. 341.)

5 Activision 79:11-17 Non-public and highly DENIED. sensitive information Activision did 6 including business strategy, not meet its decision making, market burden showing 7 share analysis, competitive competitive analysis, agreements and harm.

8 negotiations, and revenue figures, which could be 9 used to injure Activision if made publicly available.

10 (Dkt. No. 341.)

Sony 10:4-7, 15:21-23, 28:26-28, Non-public Sony data, GRANTED 11 29:1-7, 29:8-12, 33:12-15, analysis, and survey results only as 34:14-17*, 50:8-11, 51:4-10, relating to Sony product consistent with 12 55:28-56:2, 80:19, 81:14-16, strategy and platform the redactions 82:3-5, 82:10-15, 83:18-20 users’ behavior on Sony’s proposed in Dkt.

13 platform, including user No. 345. engagement, gameplay, 14 spend, likelihood of switching, or potential 15 competitive impacts of Microsoft’s proposed 16 acquisition of Activision. (Dkt. No. 345.)

17 Sony 80:19 Non-public Sony data, DENIED. Sony analysis, and survey results did not meet its 18 relating to Sony product burden showing strategy and platform competitive 19 users’ behavior on Sony’s harm. platform, including user 20 engagement, gameplay, spend, likelihood of 21 switching, or potential competitive impacts of 22 Microsoft’s proposed acquisition of Activision.

23 (Dkt. No. 345.)

Sony 92:16-28, 93:1-14 Non-public information GRANTED 24 about Sony’s approach to only as contract negotiations with consistent with 25 third party partners and the redactions discussions of particular proposed in Dkt.

26 contract terms with No. 345. particular partners that 27 could competitively harm the nature and scope of only as 1 Sony’s technical consistent with collaboration with the redactions 2 particular publishers that proposed in Dkt. could competitively harm No. 345.

3 Sony. (Dkt. No. 345.)

Sony 12:21-23, 30:25-27, 34:27-35:3, Non-public information GRANTED 4 39:1-4, 39:5-8 about Sony’s business only as strategies, competitive consistent with 5 business plans, future the redactions investment plans, console proposed in Dkt.

6 and product development No. 345. plans, product roadmaps, 7 innovation plans that could competitively harm Sony.

8 (Dkt. No. 345.)

Sony 11:26-12:1 Non-public Sony business GRANTED 9 analysis regarding only as competitors’ and consistent with 10 commercial partners’ the redactions behavior and products that proposed in Dkt.

11 could competitively harm No. 345.

Sony. (Dkt. No. 345.)

12 Nintendo 8:10-12, 9:15-22, 10:19-23, Confidential specific GRANTED 34:6-9, 36:13-17, 86:17-26, market strategy, only as 13 88:22-25, 89:5-7, 89:18-22 confidential agreements consistent with and negotiations, the redactions 14 competitive analysis, and proposed in Dkt. market share information No. 342.

15 that would allow insight into Nintendo’s market 16 position or give competitors an advantage 17 with Nintendo’s information if disclosed.

18 (Dkt. Nos. 168, 219, 342.)

Nintendo 4:3-4, 33:25, 35:13-15 Information that misstates DENIED.

19 or mischaracterizes the Nintendo did not cited exhibit where public meet its burden 20 disclosure would result in a showing false impression that competitive 21 Nintendo supports the harm. statement, which would 22 result in competitive, reputational, and economic 23 harm given the public scrutiny of the proceedings.

24 (Dkt. No. 342.)

Nintendo 8:29-9:1 Confidential specific DENIED. market strategy, Nintendo did not confidential agreements meet its burden and negotiations, showing competitive analysis, and competitive market share information harm. position or give 1 competitors an advantage with Nintendo’s 2 information if disclosed. (Dkt. Nos. 168, 342.)

3 Valve 36:20, 83:15-17 Confidential Valve sales GRANTED. and financial information 4 that could competitively harm Valve if disclosed.

5 (Dkt. No. 338.)

Nvidia 41:19-22, 45:26-46:2, 62:9-12, Non-public business GRANTED 6 78:14-16, 80:7-10, 82:24-26, information that would only as 82:27-83:2, 85:11-12, 90:16-18, reveal Nvidia’s business consistent with 7 91:8-10, 91:11-13. decision-making and the redactions strategy, market analyses proposed in Dkt.

8 strategy, business No. 340. relationships, contracts, and 9 technological capabilities, thus competitively 10 disadvantaging Nvidia. (Dkt. No. 340.)

11 Google N/A Designated as confidential. DENIED. Party (Dkt. No. 336.) did not file a 12 statement in support of 13 sealing.

Amazon N/A Designated as confidential. DENIED. Party 14 (Dkt. No. 336.) did not file a statement on 15 support of sealing.

Defendants’ Pre-Trial Proposed Findings of Fact and Conclusions of Law (Dkt. No. 178-2) Designating Highlighted Portions of Pages Reasons Proffered for Ruling on Party and Lines Requested to be Sealing Motion Sealed by Designating Party Microsoft 4:20, 9:17-19, 12:11-15, 20:25, Non-public and highly GRANTED.

21:1-6, 22:23-26 (only as to sensitive information year in 22, number in 23), 23:1- including business strategy, 2, 23:11, 23:22-24, 24:10-11, decision making, market 28:25-27, 29:1-2, 30:17-18, share analysis, competitive 31:1, 31:3-7, 44:4, 44:11-12 & analysis, agreements and n.3, 49:17-18, 70:17*-19* negotiations, and revenue figures, which could be used to injure Microsoft if made publicly available. (Dkt. No. 178.)

25 Microsoft Paragraphs 153-155 in their Non-public and highly GRANTED entirety sensitive information only as 26 including business strategy, consistent with decision making, market the partial 27 share analysis, competitive redactions analysis, agreements and highlighted in figures, which could be 1 used to injure Microsoft if made publicly available.

2 (Dkt. No. 178.)

Microsoft 10:24-25 Non-public and highly DENIED.

3 sensitive information Microsoft has including business strategy, not shown that 4 decision making, market this is its share analysis, competitive material and the 5 analysis, agreements and FTC did not file negotiations, and revenue a statement in 6 figures, which could be support of used to injure Microsoft if sealing.

7 made publicly available. (Dkt. No. 178.)

8 Microsoft 13:13-15, 22:23-26 (denied Non-public and highly DENIED. except for year and number), sensitive information Information has 9 23:3-4, 23:7 including business strategy, been publicly decision making, market discussed in the 10 share analysis, competitive course of these analysis, agreements and proceedings.

11 negotiations, and revenue figures, which could be 12 used to injure Activision if made publicly available.

13 (Dkt. No. 178.)

Activision 7:22-27, 8:1-2, 17:4-5, Non-public and highly GRANTED.

14 17:15-16, 17:21-22, 18:1-2, sensitive information 18:13, 18:15, 20:4-6, 20:13-15, including business strategy, 15 20:17-18, 20:25-21:4, 21:6, decision making, market 21:7-17, 21:18-22:2, 22:3-6, share analysis, competitive 16 25:20-22, 31:17-18, 53:19, 63:9 analysis, agreements and negotiations, and revenue 17 figures, which could be used to injure Activision if 18 made publicly available. (Dkt. No. 178.)

19 Activision 44:16 Non-public and highly DENIED. sensitive information Activision did 20 including business strategy, not meet its decision making, market burden showing 21 share analysis, competitive competitive analysis, agreements and harm.

22 negotiations, and revenue figures, which could be 23 used to injure Activision if made publicly available.

24 (Dkt. No. 178.)

Sony 6:16, 13:3, 32:11, 32:13, 32:15, Non-public Sony data, GRANTED 32:22, 32:24, 44:27-28 n.3, analysis, and survey results only as 47:9, 53:25, 54:1*, 54:3*, relating to product strategy consistent with 54:15-17 and platform users’ the redactions behavior on Sony’s proposed in Dkt. platform, including user No. 271. switching, or potential 1 competitive impacts of the at-issue acquisition that 2 could competitively harm Sony. (Dkt. No. 271.)

3 Sony 14:3-5, 29:10-11, 29:20-25 Non-public information GRANTED about Sony’s approach to only as 4 contract negotiations with consistent with third party partners and the redactions 5 discussions of contract proposed in Dkt. terms that could No. 271.

6 competitively harm Sony. (Dkt. No. 271.)

7 Nintendo 13:7, 13:9, 18:15, 44:5 Confidential business data GRANTED. revealing market share 8 information compared directly with its 9 competitors. Public disclosure would allow 10 insight into Nintendo’s market position, resulting 11 in competitive harm. (Dkt.

No. 343.)

12 Nvidia N/A Designated as confidential. DENIED. Party (Dkt. No. 179.) did not file a 13 statement on support of 14 sealing.

FTC N/A Designated as confidential. DENIED. Party 15 (Dkt. No. 179.) did not file a statement on 16 support of sealing.

18 FTC’s Bench Brief (Dkt. No. 180-2) Designating Highlighted Portions of Pages Reasons Proffered for Ruling on 19 Party and Lines Requested to be Sealing Motion Sealed by Designating Party 20 Microsoft 2:8-19 & n.4, 3:1-14 & nn.5-6 Non-public and highly DENIED. sensitive information Microsoft has 21 including internal decision- not met their making processes, burden as to 22 investment decisions, competitive strategic evaluation of harm.

23 forward-looking opportunities, and business 24 partnerships, which could be used to injure Microsoft 25 if made publicly available. (Dkt. No. 289 at 2-3.)

26 Nintendo 1:26-27 Confidential research and GRANTED. development for future 27 products, which if made public would reveal intentions and information 1 about future product releases, thus economically 2 and competitively harming Nintendo. (Dkt. Nos. 219, 3 344.)

Nintendo 2:21-26 Non-public confidential GRANTED.

4 negotiations with Microsoft that would competitively 5 harm Nintendo by releasing information about its 6 negotiations if publicly disclosed. (Dkt. Nos. 219, 7 344.)

Activision’s Answer (Dkt. No. 274-1) Designating Highlighted Portions of Pages Reasons Proffered for Ruling on Party and Lines Requested to be Sealing Motion Sealed by Designating Party Activision 5:20-21, 6:7, 19:8 Non-public and highly GRANTED. sensitive information including confidential internal business data and terms of existing confidential agreements, which could be used to injure Activision is made publicly available. (Dkt.

No. 274).

Activision 5:19 Non-public and highly DENIED.

16 sensitive information Information has including confidential been publicly 17 internal business data, discussed in the which could be used to course of these 18 injure Activision is made proceedings. publicly available. (Dkt.

19 No. 274).