UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF THE ADMINISTRATIVE LAW JUD 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

56931 1 

RESPONDENT'S OPPOSITION TO COMPLAINT COUNSEL'S MOTION FOR LEAVE 

TO RESPOND TO ECM'S THIRD SUPPLEMENT TO ITS MOTION TO SANCTION 

COMPLAINT COUNSEL FOR UNAUTHORIZED DISSUASION OF RESPONSE TO 

SUBPOENA DUCES TECUM 

Respondent ECM BioFihns, Inc. ("ECM") hereby supplies its limited opposition to 

Complaint Cmmsel's motion for leave (filed Apr. 3, 2014).

1 

In its proposed response, Complaint Counsel represents to the Comi that ECM has in its 

third supplement "impliedly" made concessions, which implications are in fact nowhere present 

in ECM pleadings. In particular, ECM objects to Complaint Counsel's false representation that 

ECM "implicitly conced[ed]" that Complaint Cmmsel's directives to Dr. Frederick Michel were 

"required" or somehow condoned by the mles. Because that legal argument neither responds to 

nor addresses new facts or argument in ECM's pleadings, that content is inappropriate, and ECM 

objects on that nan ow ground. 

1 ECM objects to Complaint Counsel's request for oral argument on grmmds that it is late 

filed, coming not at the time of the original opposition, and because oral argument is 

unnecessaty . The matters in issue are straightf01ward, the fact of the contacts is not in dispute, 

and the law is clear lmder the mles, the Court's Scheduling Order, and relevant precedent. 

1 
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2

To the extent the Court receives the pleading as a whole, Complaint Counsel’s 

implication is erroneous; the rules do not transfer authority over subpoenas from the Court to 

Complaint Counsel and precedent gives no support for any unilateral assumption of judicial 

authority by a litigating party. See Fox Industries, Inc. v. Gurovich, No. CV 03-5166, 2006 WL 

2882580, at *4 (E.D. N.Y. 2006) (“It is the court’s duty to rule on the validity of subpoenas and 

to direct the recipients to comply or not comply, not the attorney’s...”); Price v. Trans Union, 

LLC, 847 F.Supp. 2d 788, 794 (E.D. Pa. 2012). 

Neither Rule 4.10(g) nor this Court’s Scheduling Order transfers to Complaint Counsel 

authority to interfere with a response to an opposing party’s subpoenas. See Rule 4.10(g) 

(contemplating only that an opportunity be given to submitters of confidential information to 

seek protection for the information from the Court). The Scheduling Order directs the subpoena

recipient (in this case Michel) to “promptly” notify the submitter of confidential information and 

obliges the parties to respect the confidential designations when asserted in compliance with that 

Order. See Dkt. No. 9358, ALJ Scheduling Order at ¶ 11. Even if Complaint Counsel does not 

offend the law by reminding a third party of non-disclosure obligations, it does not follow from 

that weak reed that Complaint Counsel somehow possesses an added authority to direct a thirdparty without leave of Court to ignore, change the terms of, object to, or delay response to an 

opposing party’s subpoena.

Contrary to Complaint Counsel’s misconstruction of the record, ECM cited Rule 4.10(g) 

in its initial pleading for the proposition that Complaint Counsel’s reliance on Rule 4.10 is 

unfounded and improper (See ECM Mot. for Sanctions, at 7 (filed Mar. 19, 2014)), certainly not 

somehow to convey the false impression that Rule 4.10 gives Complaint Counsel an implied 

authority to usurp the powers of the ALJ and dissuade response to or otherwise interfere with a 
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party’s subpoena to a non-party. Noting in ECM’s supplemental pleadings suggests that rule 

4.10(d) or (g) “requires” Complaint Counsel to interfere with ECM’s subpoenas. 

Accordingly, ECM thusly opposes Complaint Counsel’s motion for leave because it 

seeks to raise new issues not present in ECM’s original motions or supplements thereto.2

 Respectfully submitted, 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

 Facsimile: 202-466-6938 

DATED this 3rd day of April 2014. 

2

 ECM takes no position on whether the Court should grant leave to receive arguments in 

the remainder of Complaint Counsel’s pleading. 
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CERTIFICATE OF SERVICE 

I hereby certify that on April 3, 2014, I caused a true and correct copy of the foregoing 

filing to be served as follows: 

One copy to the Office of the Secretary via 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 (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

 Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

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. 

DATED: April 3, 2014 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937