PUBLIC 

1 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

 

Docket No. 9358 

PUBLIC

 

RESPONDENT ECM BIOFILMS, INC.’S OPPOSITION TO COMPLAINT COUNSEL’S 

CROSS-MOTION TO COMPEL RESPONDENT TO DISCLOSE 

Pursuant to 16 C.F.R. § 3.22(d), Respondent ECM hereby opposes Complaint Counsel’s 

Cross-Motion to Compel Respondent to Disclose . Complaint 

Counsel has not established why the ECM proposed list will not suffice to 

satisfy Complaint Counsel’s discovery needs, particularly in light of the unrebutted declaration 

(corroborated by documentary proof already supplied to Complaint Counsel) that ECM 

advertising presentations on biodegradation of plastics do not vary in any material respect from 

one customer to another. Complaint counsel’s insistence on taking discovery from 

will yield redundant evidence on every material point and will very likely destroy 

ECM’s business. As explained more fully in ECM’s motion for a protective order, ECM’s 

 (see also Exhibit C 

to ECM’s Motion for Protective Order, non-disclosure agreement between ECM and its 

customers). Contrary to Complaint Counsel’s speculative assertions, general knowledge of FTC 

01 06 2014
    PUBLIC 

2 

proceedings against ECM (an occurrence that followed in the first instance FTC’s publication of 

its action against ECM) is a far cry from specific knowledge that Complaint Counsel 

. The harms caused by the former have 

been incurred and pale by comparison with those to be caused by the latter. One would not 

logically assume that a case brought by FTC for alleged deceptive advertising would be used as a 

pretext for federal agents 

 

. Finally, Complaint Counsel does not address essential points in ECM’s 

objections to Complaint Counsel’s overbroad, cumulative, duplicative, and burdensome 

discovery requests. As ECM stated in its motion for a protective order, the issue is not about 

whether 

 but the unreasonableness of Complaint Counsel’s insistence that all 

 be provided. ECM has offered to 

 that will enable Complaint Counsel to test its case theory and discover 

indirectly what is discoverable from ECM directly: that ECM’s advertising claims concerning 

the biodegradation of plastics do not vary materially from one customer to another. 

BACKGROUND: 

 ECM does not materially alter its advertising claims concerning the biodegradation of 

plastics from one customer to another. See Decl. of R. Sinclair, ECM Mot. for Prot. Order (Exh. 

B), at ¶12. A sampling of discovery 

presentations. Id. 

ECM’s are among the most confidential information ECM possesses, a 

point appreciated by ECM and each of its customers; indeed, ECM enters into confidentiality 

    PUBLIC 

4 

first set of interrogatories came due on December 26, 2013. ECM also requested that this dispute 

remain confidential.1

ARGUMENT 

I. Complaint Counsel Has Not Shown that Requested Discovery Is Needed for 

its Case 

 Complaint Counsel misconstrues ECM’s position. ECM maintains that Complaint 

Counsel’s extant discovery is overbroad, cumulative, and would cause undue burden and, so, 

ECM is entitled to protection under Rule 3.31(c)(2) that reasonably reduces the scope of 

Complaint Counsel’s discovery. All of the concerns stated by Complaint Counsel in its crossmotion can be satisfied with reasonable limitations on discovery that will not impose the 

enormous financial burdens that gave rise to ECM’s motion for a protective order. 

Consequently, Complaint Counsel’s cross-motion should be denied. 

First, Complaint Counsel need not have access to to test the content 

of ECM’s advertising claims on biodegradation of plastics or to discern, more particularly, if 

ECM’s logos and certificates appear at retail. There are obvious, less burdensome and efficient 

means to obtain that same information. Because ECM’s advertising claims concerning 

biodegradation of plastics do not vary materially from one customer to another, 

 would suffice to permit a thorough exploration. ECM markets to 

trade customers; it does not market directly to end-consumers. If Complaint Counsel’s theory is 

that ECM’s logos and certificates migrate from its actual trade customers to the retail market, it 

has the present wherewithal to search publicly available advertising and labeling to see whether, 

                                                             1

 In a companion motion, Complaint Counsel now seeks to remove confidential status 

and place ECM’s sensitive information on the public docket. ECM responds to that motion 

separately, and requests that his Honor permit ECM to keep confidential the discovery motion 

content that reveals Complaint Counsel’s intent to make all ECM customers discovery targets. 

    PUBLIC 

6 

value and yet so enormously burdensome that it is 

destined to produce cumulative and duplicative information yet

. ECM has no objection if Complaint Counsel contacts any of the 

, realizing that Complaint Counsel may need 

alternatives for accessing information that involve less immediate and profound harm to ECM. 

ECM has also disclosed to Complaint Counsel the names of all current and former 

employees who spoke to customers. Complaint Counsel can therefore explore correspondence 

through ECM’s own documents and employee testimony, and assess that information 

. 

The information sought from is available from a more convenient and 

direct source under Rule 3.31(c)(2)(i), to wit, ECM itself. Seeking confirmatory information 

from is also sure to result in cumulative and duplicative responses. See 16 

C.F.R. § 3.31(c)(2)(i). ECM’s President stated that he uses the same claims and discussions with 

all of his customers, and ECM’s substantial document production (including FTC’s own nonpublic investigation document retrieval from ECM) confirms that point. See Sinclair Decl. at ¶ 

12. 

 Third, Complaint Counsel does not need access to 

 The scientific evidence adduced from ECM directly, 

 will plainly show that ECM’s customers (which include no 

end-use consumer) are in the technical business of plastics manufacture and, thus, have a 

sophisticated knowledge of plastics, plastic uses and plastics disposal. ECM’s additive is 

unusable by end-use consumers because it is usable only when combined with plastic polymer 
    PUBLIC 

7 

during the manufacturing of plastic. See id. at ¶ 16. Accordingly, no company that manufactures 

plastics with ECM’s additive may be said to be unsophisticated or possessed of a lay 

understanding of the characteristics of plastics. Id. Complaint Counsel has not explained why it 

must 

 would not suffice to yield all answers anyone could 

reasonably expect from this group 

II. Disclosing Will Cause Irreparable Harm 

 Complaint Counsel either misunderstands or chooses to misrepresent the injury ECM 

suffers from giving Complaint Counsel . ECM’s burden is 

not based on the notion that Complaint Counsel’s receipt of that information, if kept non-public, 

would in and of itself result in competitive injury. Rather, ECM’s burden arises from the 

discovery Complaint Counsel says it will pursue from 

. See ECM Mot. for Prot. Order, at 

Exhibit C (Conf. Agmt), Exhibit B, at ¶¶ 11-18 (Sinclair Decl.). 

Moreover, although Mr. Sinclair has admitted the existence of FTC’s suit against the 

company (a fact known well to the industry because of FTC’s own press releases to that effect, 

see, e.g., ECM Mot. for Prot. Order, at 3 n.1), neither Mr. Sinclair nor anyone else outside of this 

case has been informed of Complaint Counsel’s effort to 

 In addition, the Protective Order cannot protect ECM from injury when Complaint 

Counsel expressly intends to use discovery in this case as a pretext to 

. As ECM more fully explains in its motion for a protective order, Complaint 

Counsel’s discovery requests are in no way reasonably tailored to lead to the adduction of 



    PUBLIC 

11 

Counsel refuses any reasonable accommodation to limit the palpable injury caused by its 

excessive demands. 

C. Complaint Counsel’s Discovery Request Are Overly Burdensome 

 Complaint Counsel has requested in Document Request No. 13 “all communications 

 regarding ECM Additives.” 

See ECM Mot. for Prot. Order, Exh. A, Doc. Requests at 7. ECM is in the additive business and, 

so, literally every document it possesses is related to “ECM Additives.” Mr. Sinclair testified 

that a suitable response to that request (and similar requests) would require a search of hundreds 

of thousands of documents, including ones having no relationship with the advertising here in 

issue, which must then be examined by counsel at substantial cost. See Sinclair Decl., at ¶¶ 19-

21. The requests are without temporal and relevance limits. Complaint Counsel has refused to 

reduce the scope of the requests in any way and has offered no justification for them, let alone a 

reasonable one, in Complaint Counsel’s cross-motion. 

That discovery abuse underscores the need for judicial limits on Complaint Counsel’s 

overzealous discovery. ECM has proposed reasonable limitations out of court to no avail. 

CONCLUSION 

 For the foregoing reasons, ECM respectfully requests that Complaint Counsel’s crossmotion to compel production be denied and that ECM’s Motion for Protective Order be granted. 

 

Respectfully submitted, 

 

 Jon 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 
    PUBLIC 

12 

 Telephone: 202-466-6937 

 Facsimile: 202-466-6938 

 Email: jemord@emord.com

DATED: January 6, 2014 

 

 
    PUBLIC 

13 

STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent’s Counsel hereby states, consistent with its accompanying 

Opposition to Complaint Counsel’s Motion to Place Discovery Documents on the Public Record, 

and that the subject matter of this instant Opposition and supporting documents are confidential 

and contain competitively sensitive information, the disclosure of which is likely to result in 

substantial economic injury to Respondent ECM Biofilms. ECM hereby files this present 

Opposition confidential, but will submit an expurgated version consistent with Rule 3.45(e) with 

redactions suitable to protect ECM from competitive injury. 

 

 Jon 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937

 
    PUBLIC 

14 

CERTIFICATE OF SERVICE 

I hereby certify that on January 6, 2014, I caused a true and correct copy of the foregoing 

(PUBLIC) OPPOSITION TO COMPLAINT COUNSEL’S CROSS-MOTION TO 

COMPEL to be filed and served as follows: 

One electronic copy to the Office of the Secretary through the e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov

Elisa Jillson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

 

I further certify that I retain a paper copy of the signed original of the foregoing 

document that is available for review by the parties and adjudicator consistent with the 

Commission’s Rules. 

 

 Jo 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937
EXHIBIT A

COMPETITIVELY SENSITIVE CONFIDENTIAL 

INFORMATION SUBJECT TO PROTECTIVE ORDER
REDACTED