In the Matter of 

ORIGINAL 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINJSTRA TIVE LAW JUDGES 

PUBLIC 

ECM BioFilms, Inc., 

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DOCKET NO. 9358 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

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ORDER ON COMPLAINT COUNSELS' MOTION TO CERTIFY SCHEDULING 

ISSUES TO THE COMMISSION AND REQUEST FOR INTERIM RELIEF 

On March 18, 2014, Federal Trade Commission ("FTC") Complaint Counsel ftled a 

Motion to Certify Scheduling Issues to the Commission and Request for Interim Relief 

("Motion"). Complaint Counsel requests an order: (1) certifying to the Commission the 

question whether to extend the date for the evidentiary hearing in this case by tlu-ee months, 

from the current date of June 18, 2014, to September 18, 2014, "to allow sufficient time to 

complete discovery"; (2) issuing findings and recommendations suppor1ing the requested 

ex-tension; and (3) providing "interim relief' by extending all dates in the Scheduling Order 

between February 28, 2014 through April30, 2014 by 45 days. On March 28, 2014, 

Respondent ECM BioFilms, Inc. ("Respondent" or "ECM") filed an opposition to the Motion, 

opposing each of Complaint Counsel's requests for relief and requesting that the existing 

discovery schedule be enforced. ("Opposition"). 

Having fhlly reviewed and considered the Motion and the Opposition, and all 

assertions and arguments therein, the Motion is GRANTED IN PART and DENIED IN 

PART, as explained below. 

Complaint Counsel also filed, on March 18,2014, a Motion to Extend the Word Count 

Limit applicable to the instant Motion. Complaint Counsel represents that Respondent does 

not oppose a mutual extension, and Respondent did not file an opposition. For the reasons set 

forth below, the Motion to Extend the Word Count Limit is GRANTED, as to both the 

Motion and the Opposition. 

I. Extension of Word Count Limit 

In its Motion to Extend the Word Count Linrit, seeking to extend the 2500 word limit 
imposed by FTC Rule 3.22(c), Complaint Counsel asserts: (1) its Motion could reasonably be 

divided into two separate motions (one addressing certification and another addressing interim 

scheduling relief); (2) "because the Commission lacks the Court's experience with this 

litigation's procedural history, the filing requires additional detail"; and (3) the substantial 

importance of the issues raised warrants additional space. 

Had Complaint Counsel sought to succinctly certify to the Commission only the 

certifiable issue - the hearing date - rather than to entangle other issues and accusations more 

properly addressed to the Administrative Law Judge ("ALJ") assigned to hear the instant case, 

then an exhaustive account of the discovery disputes to date would not be necessary, nor 

would relief from the word count limit be necessary.' Nevertheless, because Respondent did 

not object to the relief sought and because both parties have already filed papers in excess of 

the 2500 word limit, the Motion to Extend the Word Count Limit is GRANTED. 

II. Certification to the Commission 

Pursuant to FTC Rule 3.11, the Commission sets the date of the evidentiary hearing 

when it issues its administrative complaint. 16 C.F.R. § 3.11(b)(4). Under FTC Rule 3.2l(c), 

"[t]he Commission may, upon a showing of good cause, order a later date for the evidentiary 

hearing than the one specified in the complaint." 16 C.F.R. § 3.21(c)(l). See also 16 C.F.R. 

§ 3.21(c)(2) ("The Administrative Law Judge may, upon a showing of good cause, grant a 

motion to extend any deadline or time specified in this scheduling order other than the date of 

the evidentiary hearing."). 

Pursuant to FTC Rule 3.22(a), "[t]he Administrative Law Judge shall certify to the 

Commission forthwith any other motion upon which he or she has no authority to rule." 16 

C.F.R. § 3.22(a). In accordance with the foregoing Rules, and as more fully addressed herein, 

the request for a later starting date for the evidentiary hearing is hereby CERTIFIED to the 

Commission. The remaining requests contained in the Motion are addressed and resolved 

below. 

TIL Issuance of Findings and Recommendations 

Complaint Counsel devotes the majority of its Motion to airing a long list of 

grievances against Respondent conceming the timing and sufficiency of Respondent's 

discovery responses. Complaint Counsel urges a factual finding that Respondent engaged in 

intentional, dilatory tactics in providing discovery, thereby impeding the development of 

Complaint Counsel's case, and seeks a recommendation to the Commission that the 

Commission extend the hearing date for this reason. Respondent's Opposition returns fire 

with its own list of grievances, attempting to exonerate itself and to demonstrate that any 

1 Moreover, if the ALJ, who is familiar with this litigation's procedural history and manages all other aspects of 

the case, was empowered by the Rules to reschedule the hearing date (see Section ll infra), neither certification 

to the Commission, nor the "additional detail" would be necessary. 

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delay in the progress of discovery was due to Complaint Counsel's excessive and 

unreasonable discovery demands, which properly required negotiation, and ultimately, 

resolution by the ALJ. It is unfortunate that the certification process, addressed to the full 

Commission, has become a vehicle for the parties to air their grievances against one another. 

As Complaint Counsel acknowledges (Motion at 7 -8), it is not necessary to demonstrate that a 

party engaged in intentionally dilatory tactics in order to justify resetting the trial date. 

Discovery disputes, for better or worse, are a common occurrence in litigation. The 

Rules clearly permit a party to object to discovery in whole or in pati and to seek orders to 

protect itself from what it believes is beyond the permissible scope of discovery. At this stage 

of the proceedings, after a Complaint has been issued and before an Initial Decision is issued, 

discovery disputes are more properly dealt with by the ALJ, who is the presiding officer with 

"the duty . .. to take all necessary action to avoid delay in the disposition of proceedings, and 

to maintain order," and with "all powers necessary to that end." 16 C.F.R. § 3.42(c). The 

ALJ is thoroughly familiar with the discovery disputes to date, and with the good faith, or 

lack thereof, of each party, and is in the best position to determine whether scheduling relief is 

warranted, and, if so, how much time is needed. 

Complaint Counsel's request for "findings" is not supported by any legal authority, is 

not appropriate, and is therefore DENIED. However, because the ALJ is uniquely familiar 

with the discovery disputes to date, this certification is made with the recommendation that 

the hearing date be extended. 

An eight month time period between issuance of a complaint and the date of trial, as 

provided under Rule 3.11 (b)( 4), is insufficient where multiple discovery disputes arise, such 

as has occurred in this case. Negotiation, which is encouraged by the Ru1es, takes time, as 

does motion practice when negotiation fails. The parties are entitled to full and fair discovery. 

However, Complaint Counsel's request for 90 days is not sufficiently justified. Although 

Respondent opposes Complaint Counsel's request and "requests that the existing discovery 

schedule be enforced" (Opposition at 17), in a separate motion to compel and for sanctions, 

filed March 21 , 2014, Respondent seeks an order extending Respondent's fact discovery 

deadline for conducting additional discovery on a limited matter. Therefore, in order to allow 

sufficient time for discovery and other trial preparation requirements, this certification is 

made with the recommendation that the Commission reset the date of the evidentiary hearing 

for the Tuesday following 45 days from the current hearing date of June 18, 2014, to August 

5, 2014. In this respect, Complaint Counsel's Motion is GRANTED IN PART and DENIED 

IN PART. 

IV. Extension of Scheduling Order deadlines 

FTC Rule 3 .21 (c) states, in pertinent part: 

The Administrative Law Judge may, upon a showing of good cause, grant a 

motion to extend any deadline or time specified in this scheduling order other 

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than the date of the evidentiary hearing .. . . In determining whether to grant 

the motion, the Administrative Law Judge shall consider any extensions 

already granted, the length of the proceedings to date, the complexity of the 

issues, and the need to conclude the evidentiary hearing and render an initial 

decision in a timely manner. 

16 C.F.R. § 3.2l(c). 

Complaint Counsel contends that it is impossible to complete fact discovery before the 

present discovery deadline of April 3, 2014. Complaint Counsel asserts that production of 

documents from ECM customers pursuant to outstanding subpoenas will not occur until early 

April, and that additional time is necessary to schedule depositions that can make use of the 

expected documents. Further, Complaint Counsel asserts, expert reports are due on April 16, 

2014, and absent an extension ofthe deadlines, the experts will not have sufficient time to 

complete their analyses. Similarly, Complaint Counsel asserts, there is insufficient time under 

the Scheduling Order to make use of the anticipated discovery for purposes of witness lists, 

exhibit lists, and deposition designations, all of which are due between April 16 and April 24, 

2014. Complaint Counsel requests an extension of 45 days for all deadlines between 

February 28 through April30, 2014. 

Respondent opposes extending the scheduling order deadlines as requested by 

Complaint Counsel? Respondent argues that Complaint Counsel's asserted need is a result of 

Complaint Counsel's own delays and decisions with respect to taking discovery. Respondent 

contends that an extension of discovery by 45 days, and a three-month extension of the entire 

matter, will increase ECM's total litigation costs by hundreds of thousands of dollars, and that 

ECM cannot afford the additional expenses. See Opposition, Ex. RX-B " 8 (Declaration of 

Kenneth Sullivan). 

The factual issues in this case are scientific, technical, and complex, and the factfinding process in this matter will be better served by enabling the parties to develop a 

complete record. Moreover, there have been no previous extensions of the Scheduling Order 

deadlines and an extension of certain Scheduling Order deadlines will not affect the ability to 

conclude the hearing, or render an initial decision, in a timely manner. 

Complaint Counsel has demonstrated that good cause exists to extend deadlines in the 

Scheduling Order to enable completion of discovery in sufficient time before the start of trial. 

However, its request for an extension of 45 days for only certain deadlines is not feasible with 

the current hearing date. Issued concurrently with this Order is a Revised Scheduling Order. 

In the Revised Scheduling Order, pretrial deadlines have been extended as far as possible, 

given the current starting date for the hearing of June 18, 2014. In the event the Commission 

2 However, as noted above, Respondent seeks a 30 day extension of its fact discovery deadline to permit it to 

conduct limited additional discovery. See Respondent's Motion to Compel and for Sanctions, filed March 21, 

2014. 

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extends the date of the evidentiary hearing, the Administrative Law Judge will issue another 

revised scheduling order to reflect any new hearing date. In this respect, Complaint Counsel's 

request for interim relief is GRANTED IN PART and DENIED IN PART 

ORDERED: 

D. Michael Chappe 

Chief Administrative Law Judge 

Date: April 1, 201~ 

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