01 28 2014

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) ___________________________) 

Docket No. 9358 

PUBLIC DOCUMENT 

COMPLAINT COUNSEL'S MOTION FOR SANCTIONS BASED ON RESPONDENT'S 

REFUSAL TO COMPLY WITH THE COURT'S JANUARY 10, 2014 ORDER 

Pursuant to Rule 3.38, Complaint Counsel respectfully requests that the Court sanction 

ECM BioFlims ("ECM") for its gross noncompliance with the Court's January 10 Order that it 

disclose its revenues by customer. ECM produced a list of customer names on January 16, and 

then-only after Complaint Counsel raised the issue-a list of revenues on January 20 (a federal 

holiday). However, the belatedly-disclosed revenue list identifies customers by number only, not 

by name, whereas the customer list identifies customers by their names only-no numbers. 

Compare CCX-A:l (excerpt of customer name list) with CCX-A:2 (excerpt of revenue list).1 

This renders it impossible to determine revenues per customer. 

Under Rule 3.38, such gamesmanship is sanctionable for three reasons. First, the Court 

granted Complaint Counsel's motion and specifically rejected ECM's position that it could 

withhold "revenues by customer." Order at 8. Second, ECM's noncompliance is unjustified. 

Third, the sanctions sought are reasonable given the material withheld. Specifically, we need 

revenue information to take discovery quickly, to ensure a representative customer sample, and 

to address issues associated with the potential remedy. Accordingly, we ask the Court to: (a) bar 

ECM from arguing that any sample is unrepresentative; (b) bar ECM from making any revenuerelated argument concerning potential remedies, and (c) extend Complaint Counsel's fact 

discovery deadline by whatever amount of additional time ECM takes to comply with the Order. 

1 Complaint Counsel's exhibits and the attachments thereto as referred to as "CCX- : ." 
PUBLIC DOCUMENT 

BACKGROUND 

Almost two months ago, on November 26,2013, Complaint Counsel served ECM with 

interrogatories. CCX-A:3. As relevant here, Interrogatory No. 1 asked ECM to list its customers 

(and distributors). See id. at 5. Interrogatory No.2 provided: "For each customer or distributor 

identified in Interrogatory 1, list ECM's revenue per customer or distributor per year." Id. As 

the Court is aware, ECM did not respond, and instead motions practice ensued concerning both 

interrogatories. Among other things, ECM argued that revenues were irrelevant because its 

claims "do not vary based on revenues generated. "2 Complaint Counsel disputed this position 

and contended that revenues by customer were important to our ability to take discovery from a 

representative subset ofECM's customers.3 

In its January 10 Order, the Court analyzed these issues in detail. See Order at 7-8. The 

Court ultimately held that ECM's argument that its "revenues per customer are not relevant" was 

''unpersuasive." See id. at 7. As the Court concluded, "Respondent has failed to demonstrate 

that ECM's revenues by customer should not be disclosed in discovery." Id. at 8 (emphasis 

added). The Court also ordered ECM to disclose its customer list by January 16. 

ECM disclosed its customer list on January 16, but not its revenues by customer. See 

CCX-A: 1 (redacted excerpt of customer name list). The next day, Complaint Counsel raised this 

omission. CCX-A:4 at 2 (highlighted passage). On January 20, a federal holiday, ECM 

disclosed what it characterized as "a complete listing of revenues by receipt from 2009 to the 

present[.]',4 CX-A:5 (emphasis added); see also CCX-A:2 (redacted excerpt of revenue list). As 

ECM is aware, the revenue list relates sales to "customer numbers," whereas the customer list 

does not include customer numbers. Put differently, ECM produced a list of customers, and a 

list of sales figures, but no way to relate the two. 5 As a result, ECM's production is useless.6 

2 See ECM's Motion for Protective Order (Dec. 13, 2013) at 5. 

3 See Complaint Counsel's Opposition & Cross-Motion (Dec. 30, 2013) at 4. 

4 Complaint Counsel never agreed to this date limitation. 

5 In essence, ECM produced a code with no key. 

2 
PUBLIC DOCUMENT 

LEGAL STANDARD 

Under Rule 3.38, sanctions are proper if: "(1) production of the requested material has 

been mandated by a specific discovery order issued by an ALJ ... and directed at the party ... 

from whom the material is sought; (2) the party's failure to comply is unjustified; and (3) the 

sanction imposed 'is reasonable in light of the material withheld and the purposes of Rule 

3.38(b)."' In the Matter ofPolypore Int'l, Inc., No. 9327,2009 FTC LEXIS 92, *5-*6 (F.T.C. 

May 1, 2009) (quoting In re Int'l Tel. & Tel. Corp., 104 F.T.C. 280,449 (1984)) (Court's 

emphasis omitted). 

ARGUMENT 

I. The Court Ordered ECM To Disclose Revenues Per Customer. 

On January 10, the Court denied ECM's Motion for a Protective Order concerning 

various issues (including revenues per customer), and granted Complaint Counsel's cross-motion 

to compel. As detailed above, the Court analyzed the parties' positions, found ECM's 

''unpersuasive," and held that ECM failed to demonstrate that its "revenues by customer should 

not be disclosed[.]" Order at 7-8. Thus, "production of the requested material has been 

mandated by a specific discovery order issued by an ALJ[.]" Polypore Int'l., 2009 FTC LEXIS 

92, at *5. 

II. ECM's Failure To Comply Is Unjustified. 

ECM has not justified its failure to comply with the January 10 Order. In this instance, 

the Court overruled ECM's objections and required it to respond to Interrogatory No.2. The 

6 During the meet and confer regarding this issue, ECM stood by its production as fully 

compliant with the Court's January 10 Order. As ECM explained it, its production complies 

with the spirit of the Court's Order while also respecting the concerns behind ECM's objections. 

See CCX-A~ 2. In reality, the Court's Order overruled ECM's objections and the production of 

useless revenue information violates both the Order's spirit and its letter. More likely than the 

far-fetched explanation ECM provided, ECM disagrees with the Order and seeks an opportunity 

to relitigate the Court's decision (or to set up an eventual contempt finding that the Commission 

would review pursuant to Rule 3.42(h), see CCX-A:6 ("We have reviewed the ALJ's Order 

issued today, and we intend to exhaust all avenues of review with respect to certain portions 

of that decision.") (emphasis added)). 

3 
PUBLIC DOCUMENT 

fact that ECM apparently believes it can still assert objections the Court overruled does not 

justify violating this Court's orders. 

III. The Sanctions Sought Are Reasonable Given the Material Withheld. 

Because the proposed sanctions relate directly to the need for the material, they are 

"reasonable in light ofthe material withheld and the purposes ofRule 3.38(b)[.]"' Polypore 

Int'l, 2009 FTC LEXIS 92, *5-*6 (quotation omitted). First, Complaint Counsel sought the stillwithheld discovery to help ensure that it obtained discovery from a representative customer 

sample. Preventing ECM from disputing whether a sample is representative thus ties the 

consequence closely to the misconduct. 

Second, revenue per customer information may be relevant to the fencing-in relief 

available, particularly ifECM argues that it deceived only a subset of its customers who paid it 

relatively little. 7 Barring ECM from making any revenue-related argument concerning potential 

remedies responds directly to this possibility. 

Third, we also sought the discovery at issue so that we could proceed with discovery 

from customers more quickly; the more information we have about ECM's relationships with its 

customers, the less discovery Complaint Counsel needs and the faster we can move forward. 

Therefore, extending Complaint Counsel's deadline for completing fact discovery (but not 

ECM's) by whatever amount of additional time ECM takes to comply with the Order ameliorates 

the prejudice that ECM' s delay would otherwise produce. 8 

Significantly, Ru1e 3.38(b) allows the Court "to attach weight to a party's intransigence," 

In the Matter of Beatrice Foods Co., No. 9112, 1980 FTC LEXIS 204, *4 (F.T.C. May 21, 

7 Cf Telebrands, Corp. v. FTC, 457 F.3d 354, 359 (4th Cir. 2006) (considering "gross 

sales" as one factor relevant to whether the misconduct was serious enough to support the 

fencing-in relief the Commission imposed). 

8 This request for relief is also significant given the status of discovery generally. 

Shortly, Complaint Counsel will file an omnibus motion to compel regarding all of its 

outstanding document requests (of which ECM has responded to almost none). During 

yesterday's meet and confer, ECM wou1d provide no commitment regarding its discovery 

obligations other than a promise to comply with those obligations, as ECM interprets them, 

before discovery closes on April3. CCX-A~ 3. 

4 
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1980), and allowing ECM to play discovery games without consequence would disserve this 

important objective. Accordingly, the sanctions sought are reasonable. 

CONCLUSION 

For these reasons, Complaint Counsel respectfully asks the Court to (a) bar ECM from 

arguing that any customer sample is unrepresentative in any way; (b) bar ECM from making any 

revenue-related argument concerning potential remedies, and (c) extend Complaint Counsel's 

deadline for completing fact discovery (but not ECM's) by whatever amount of additional time 

ECM takes to comply with the Order. 

Dated: January 27, 2014 

// 

/ / =--::-----zL--£=--::--____;;_----::---:--:;------,:-

/ Ka 

/ J an Cohen Gcohen2@ftc.gov) 

/ isa Jillson ( ejillson@ftc.gov) 

'- · Federal Trade Commission 

5 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

MEET AND CONFER CERTIFICATION 

Complaint Counsel conferred with opposing counsel in a good faith effort to resolve by 

agreement the issues raised by the motion, but the parties were unable to reach such an 

agreement. The conference took place telephonically on January 21, 2014, at 1:00PM. 

Katherine Johnson, Jonathan Cohen, and Elisa Jillson participated on Complaint Counsel's 

behalf. Jonathan Emord, Peter Arhangelsky, and Lou Caputo participated on ECM's behalf. 

DATED: January 27, 2014 

6 

Kath · Johnson kjohnson3@ftc.gov) 

Jo an Cohen Gcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

STATEMENT REGARDING CONFIDENTIALITY 

Exhibit A, Attachment 1 contains customer names and other information from which the 

names ofECM's customers arguably could be inferred. Exhibit A, Attachment 2 contains 

revenue information that ECM requested Complaint Counsel keep confidential. Accordingly, 

Complaint Counsel will submit a public version with only these two attachments redacted. 

DATED: January 27, 2014 

7 

athe · ohnson (kjohnson3@ftc.gov) 

Jo an Cohen Gcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

[PROPOSED] ORDER 

GRANTING COMPLAINT COUNSEL'S MOTION FOR DISCOVERY SANCTIONS 

This matter having come before the Chief Administrative Law Judge on January 22, 

2014, upon a Motion for Sanctions by Complaint Counsel, and having considered all supporting 

and opposing submissions, and for good cause appearing, it is hereby ORDERED that Complaint 

Counsel's Motion Is GRANTED. 

Itis FURTHER ORDERED that (a) ECM is barred from arguing that any sample of 

information taken from its consumers is unrepresentative; (b) ECM is barred from making any 

revenue-related argument concerning potential remedies, and (c) Complaint Counsel's deadline 

for completing fact discovery is extended by the number of days from January 16, 2014 until the 

date ECM complies fully with this Court's January 10 Order. ECM's deadline for completing 

fact discovery remains April3, 2014. 

SO ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: 

8 
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CERTIFICATE OF SERVICE 

I hereby certify that on January 28, 2014, I caused a true and correct copy of the 

foregoing to be served as follows: 

One electronic copy to the Office ofthe Secretary, and one copy through the FTC's e-filing system: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-11 0 

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P .C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

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

document that is available for review by the parties and the adjud· 

Date: January 28, 2013 

9 

Johnson (kjohnson3@ftc.gov) 

Jon an Cohen (jcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________

)

In the Matter of )

)

ECM BioFilms, Inc., ) Docket No. 9358

a corporation, also d/b/a )

Enviroplastics International )

 )

EXHIBITS IN SUPPORT OF

COMPLAINT COUNSEL’S MOTION FOR SANCTIONS BASED ON RESPONDENT’S 

REFUSAL TO COMPLY WITH THE COURT’S JANUARY 10, 2014 ORDER
Complaint Counsel

Exhibit A

CCX-A
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) _____________________________) 

Docket No. 9358 

CONFIDENTIAL 

DECLARATION OF JONATHAN COHEN IN SUPPORT COMPLAINT COUNSEL'S 

MOTION FOR SANCTIONS BASED ON RESPONDENT'S REFUSAL TO COMPLY 

WITH THE COURT'S JANUARY 10, 2014 ORDER 

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the 

following is true and correct: 

1. I mn over 18 years of age, and I am a citizen of the United States. I am e1nployed 

by the Federal Trade Commission ("FTC") as an attorney in the Division of Enforcement in the 

Bureau of Consu1ner Protection. I am an attorney of record in the above-captioned matter, and I 

have personal knowledge of the facts set forth herein. 

2. During the 1neet and confer yesterday, ECM stood by its production as fully 

compliant with the Court's January 10 Order. As ECM explained it, its production complies 

with the spirit of the Court's Order while also respecting the concerns behind ECM' s objections. 

3. Also during yesterday's meet and confer, ECM would provide no commitment 

regarding its discovery obligations other than a pro1nise to comply with those obligations, as 

ECM interprets the1n, before discovery closes on April 3. 

4. Attachment 1 hereto are true and correct copies of excerpts from ECM' s 

production of its customer list. 

5. Attachment 2 hereto are true and correct copies of excerpts from ECM's revenue 

production. 

6. Attachment 3 hereto is a true and correct copy of Interrogatories Co1nplaint 

Counsel served to ECM on November 26, 2013. 

7. Attacmnent 4 hereto is a true and correct copy of an email from Jonathan Cohen 

to various persons, dated January 17, 2014 at 2:13PM. 

8. Attacmnent 5 hereto is a true and correct copy of an email from Peter 

Arhangelskyto various persons, dated January 20,2014 at 4:25PM. 

9. Attachment 6 hereto is a true and correct copy of an etnail from Peter 

Arhangelsky to various persons, dated January 1 0, 2014 at 4:3 5 PM. 

Executed this 21st of January 2014 in Washington, D.C. / ,/·' ~ -J~~tra-n~C-o~h-e_n ________ _ 

L./ omplaint Counsel 
Complaint Counsel

Exhibit A

Attachment 1

CCX-A:1












Complaint Counsel

Exhibit A

Attachment 2

CCX-A:2










Complaint Counsel

Exhibit A

Attachment 3

CCX-A:3
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________ 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

COMPLAINT COUNSEL’S FIRST SET OF 

INTERROGATORIES TO ECM BIOFILMS, INC.

 Pursuant to Rule 3.35 of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel requests that Respondent ECM Biofilms, Inc.

(“ECM”) respond to these Interrogatories within 30 days and furnish the requested information 

to Complaint Counsel at the Federal Trade Commission, 600 Pennsylvania Avenue, NW, M8102B, Washington, DC 20580, or at such time and place as may be agreed upon by all counsel. 

INSTRUCTIONS

1. Unless otherwise specified, the time period covered by an Interrogatory shall not 

be limited and all information responsive to the Interrogatory, regardless of dates or time period 

involved, shall be provided. 

2. Each Interrogatory should be set forth in full preceding the answer to it and 

should be answered separately and fully in writing, under oath. 

3. All answers shall be served within 30 days after service of these Interrogatories.

4. These Interrogatories seek information that is in your knowledge or possession, or 

under your actual or constructive custody or control, whether or not such information is located 

in the files of, or possessed by your individual officers, directors or employees, and whether or 

PUBLIC DOCUMENT
not such information is received from or disseminated to any other person or entity including 

attorneys, accountants, directors, officers, employees, independent contractors, or volunteers. 

5. To the extent that an Interrogatory may be answered by referencing a document, it 

is permissible to attach the document as an exhibit to the answer and refer to the document in the 

answer. If any such document contains more than one page, you must refer to the page and 

section where the relevant reference(s) can be found. 16 C.F.R. § 3.35(c). 

6. Where an Interrogatory requests an answer or portion of an answer that already 

has been supplied in response to another Interrogatory, the answer or portion of the answer need 

not be supplied a second time. It is sufficient to specify the responses that contain the answer, 

and supply any additional information necessary to answer the Interrogatory. 

7. All objections to any Interrogatory must be raised in your initial response or 

otherwise waived.

8. If you object to any Interrogatory or a part of any Interrogatory, state the 

Interrogatory or part to which you object, state the exact nature of the objection, and describe in 

detail the facts upon which you base your objection. If any Interrogatory cannot be answered in 

full, it shall be answered to the fullest extent possible and the reasons for the inability to answer 

fully shall be provided. If you object to any Interrogatory on the grounds of relevance or 

overbreadth, you shall provide all responsive information that is concededly relevant to the 

parties’ claims or defenses or the requested relief. For each Interrogatory that cannot be 

answered in full, you shall describe the efforts made to locate information needed for such 

answer.

9. If any documents are not identified in response to an Interrogatory on grounds of 

privilege, submit together with such claim a schedule of the items withheld which states 

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individually for each item withheld: (a) the type, title, specific subject matter, and date of the 

item; (b) the names, addresses, positions, and organizations of all authors and recipients of the 

item; and (c) the specific grounds for claiming that item as privileged. If only part of a 

responsive document is privileged, all non-privileged portions of the item must be identified.

10. These Interrogatories are continuing in character so as to require you to produce 

additional information promptly upon obtaining or discovering different, new or further 

information before the close of discovery. Further instructions pertinent to a particular 

Interrogatory appear in parentheses within or following that Interrogatory.

11. You are hereby advised that Complaint Counsel will move, if any party files any 

dispositive motion, or at the commencement of trial, to preclude you from presenting evidence 

regarding responsive matters you have failed to set forth in your answers to these Interrogatories.

DEFINITIONS

Notwithstanding any definition below, each word, term, or phrase used in these Requests 

is intended to have the broadest meaning permitted under the Federal Trade Commission’s Rules 

of Practice.

1. “All” means and includes “any and all.” 

2. “And” and “or” shall be construed either disjunctively or conjunctively as necessary to 

bring within the scope of the request any information that might otherwise be construed 

to be outside its scope. 

3. “Any” means and includes “any and all.”

4. “Biodegradation” and any variation thereof means decomposition into elements found in 

nature by the action of living organism such as bacteria or fungi. 

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5. “Document” or “documents” are synonymous in meaning and equal in scope to the 

usage of the terms as defined by 16 C.F.R. 3.34(b), and includes, without limitation, any 

written material, whether typed, handwritten, printed or otherwise, and whether in draft 

or final form, of any kind or nature, or any photograph, photostat, microfilm or other 

reproduction thereof, including, without limitation, each note, memorandum, letter, 

release, article, report, prospectus, memorandum of any telephone or in-person 

conversation, any financial statement, analysis, drawing, graph, chart, account, book, 

notebook, draft, summary, diary, transcript, computer database, computer printout, or 

other computer-generated matter, contract or order, laboratory report, patent, trademark 

or copyright, and other data compilations from which information can be obtained. 

Electronic mail is included within the definition. A draft or non-identical copy is a 

separate document.

6. “ECM” shall mean ECM Biofilms, Inc., including without limitation, its agents, 

employees, officers, or anyone else acting on its behalf. 

7. “ECM Additive” means the plastic additive manufactured by ECM, including but not 

limited to “Masterbatch Pellets.”

8. “ECM Plastic” means any plastic treated with or incorporating an ECM Additive.

9. “Plastic” means conventional, commercial application polyolefins (any of the 

polyethylenes and polypropylenes), EVAs, PVCs, PETs, PSs, PUs and any combination 

of these resins.

10. “Regarding” means and includes affecting, concerning, constituting, dealing with, 

describing, embodying, evidencing, identifying, involving, providing a basis for, 

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reflecting, regarding, respecting, stating, or in any manner whatsoever pertaining to that 

subject.

11. “You” and “your” means ECM.

INTERROGATORIES

1. Identify, by business name, individual contact, address, and telephone number, all

customers who have purchased any ECM Additive, including customers who purchased any 

ECM Additive from distributors, in which case, also provide the name, address, and telephone 

number of the distributor from whom the customer purchased the ECM Additive. 

2. For each customer or distributor identified in Interrogatory 1, list ECM’s revenue 

per customer or distributor per year. 

3. List all current and former employees of ECM by name and title and specifically 

identify which current and former employees of ECM have communicated with any of the 

customers and distributors identified in Interrogatory 1. 

4. Identify, by name and title, all current and former employees of ECM who have 

communicated with any laboratory or other testing facility regarding testing of the ECM 

Additive or ECM Plastic.

5. If you contend that you provided your customers, distributors, or potential 

customers with verbal information during the sales process regarding the rate and extent of the 

Biodegradability of the ECM Additive or ECM Plastics, or regarding the ability of ECM 

Additives to initiate, cause, enable, promote, or enhance the Biodegradation of ECM Plastics, 

describe such information. 

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6. Identify, by name, title, and business name, the current and former ECM 

employees and the customers, distributors, or potential customers involved in any 

communications described in Interrogatory 5. 

Dated: November 26, 2013 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 326-2185 

 Elisa K. Jillson (202) 326-3001

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop M-8102B 

Washington, DC 20580 

PUBLIC DOCUMENT
CERTIFICATE OF SERVICE

I hereby certify that on November 26, 2013, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel’s First Set of Interrogatory Requests to ECM 

BioFilms, Inc. to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com

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

document that is available for review by the parties and the adjudicator. 

/s/ Katherine Johnson 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 

PUBLIC DOCUMENT
Complaint Counsel

Exhibit A

Attachment 4

CCX-A:4
1

Cohen, Jonathan

From: Cohen, Jonathan

Sent: Friday, January 17, 2014 2:13 PM

To: 'Peter Arhangelsky'; 'Jonathan Emord'; 'Lou Caputo'

Cc: Jillson, Elisa; Johnson, Katherine

Subject: ECM: Document Requests & Other Outstanding Issues

Attachments: Complaint Counsel's Preliminary Witness List.pdf

Counsel, 

 We served most of the document requests at issue on November 27, and your production is now three 

weeks overdue (and counting). The Court’s January 10 order compelled ECM to produce its customer list – which 

you did late yesterday. But nothing in the Court’s order requires us to accept vastly less than what the FTC’s Rules 

entitle us to. Furthermore, nothing in the Court’s order allows you to produce whatever you intend to produce 

whenever convenient for you. We’re extremely concerned that the effect of your proposal will be that, whatever you 

produce, you will produce it shortly before discovery closes. Accordingly, we respectfully decline your proposal for 

the reasons articulated below, but offer our last, best accommodation, with the sincere hope that you’ll accept. As I 

suspect we’ve already made clear, we’d obviously rather move forward quickly than have to return to the Court 

again. 

 With respect the specifics of your proposal: 

1. Customer Contacts – This issue is separate from whether ECM has to comply with our document requests. We 

received your customer list yesterday evening. We’ll let you what subset we intend to contact after we’ve had an 

opportunity to review and analyze the list and, potentially, after we’ve had an opportunity to review and analyze 

your document production. In all events, we’ll give ECM enough time to notify its customers or seek emergency 

relief from the Court before we contact any customer on the list you produced yesterday evening. Again, however, 

the customer contacts issue has nothing to do with ECM’s obligation to produce its own responsive documents. 

2. Temporal Limitation – As you know, our pre-complaint investigation covers the period from January 1, 2008 

forward. In the interest of accommodation, we’ll incorporate your proposed January 1, 2009 limit into our final 

proposal. 

3. Customer Correspondence – Your proposal is replete with problems; we’ll simply note that, even if an “email 

only” production was satisfactory (and it isn’t), you aren’t proposing to produce these documents by any particular 

time. Even if you believe that these are the only documents we’re entitled to, it’s still the case that they’re three 

weeks overdue (with no end in sight). 

4. Scientific, Technical, & Otherwise Responsive Documents – There’s some room for negotiation here; we agree 

that you don’t have to produce to us anything you’ve produced already during the pre-complaint investigation (in 

fact, you don’t even have to negotiate that, we volunteer that you don’t have to re-produce anything, with respect to 

these subjects or otherwise). And keywords may be appropriate for finding responsive scientific, technical and 

other responsive documents. 

 Here’s our last, best offer, and a bit about why we think you should at least consider it seriously: 

(1) From the outset, accepting this offer would discharge your obligations under all outstanding document requests.

CCX-A:4 at 1 PUBLIC DOCUMENT
2

(2) Subject to the “Enhanced Clawback” agreement described below, you give us the entire MS Access 

correspondence database (in native form) by January 24. ECM does not need to search its archives for original 

correspondence. We’ll take the summaries. If you want, you can remove from the database anything you believe in 

good faith is non-responsive or privileged (in fact, you should have started this process some time ago, and maybe 

you have). 

(3) In light of the fact that we’re agreeing to take only summaries, you: (a) stipulate to the authenticity of the 

documents produced; (b) waive any objection that we reasonably could have met if ECM had produced the original 

correspondence; and (c) waive any right to use any document from the archives. 

(4) You get an “Enhanced Clawback” agreement with respect to the MS Access database. The only reason you’ve 

given us as to why you can’t produce the database with customer communications is that it might also contain 

privileged information. Accordingly, we would agree to the following terms, in addition to whatever rights you have 

under the FTC Rules and other authority: (a) if you discover that you produced anything privileged, ECM is 

entitled to claw it back immediately (we’ll delete it from the database and certify to you that we’ve done so); (b) if we

discover anything that a reasonable attorney might consider privileged, we’ll “claw it back” to you immediately, even 

if its reasonably debatable whether it’s privileged or not (again, we’ll delete it from the database and certify to you 

that we’ve done so); (c) the presence of an arguably privileged document in the database will not constitute a waiver 

of any sort; (d) we’ll store the documents in a manner that limits access to case team members only, as opposed to 

FTC staff generally; (e) subject to applicable law, we’ll destroy the database as soon as possible when this litigation 

concludes; and (f) we’ll consent to having the Court enter this Enhanced Clawback agreement as a stipulated order. 

(5) With respect to our requests for scientific or technical information—and every other outstanding document 

request—we’ll give you 50 words, phrases, or Boolean sets of words or phrases to search. No negotiation, no timeconsuming back-and-forth (although if you want to add to our list, you’re welcome to do so). You search 

everything ECM has for scientific and technical information, and all other outstanding document requests, and give 

us the results by the end of the month. You agree that ECM can’t use anything it doesn’t produce at that time. 

(6) Everything above is limited to January 1, 2009 forward – exactly as you’ve requested. 

 As I mentioned, we hope you’ll accept this proposal. Initially, with respect to the correspondence that’s 

been at the center of this dispute, ECM’s burden is—literally—near zero. All ECM has to do is copy its database 

and send it to us. If ECM needs help uploading the database to an FTP site, we’ll ask our technical support staff to 

help you (at our expense). Depending on how smoothly things go, we’re talking about an hour or two of effort and 

potentially no expense to ECM. Even at worst, the time and expense to ECM will be negligible. We’ll do all the 

hard work on our end. Mr. Sinclair can walk away knowing that he got a much better deal that the law entitles him 

to, or than most other litigants receive. Furthermore, ECM gets the date restriction it wants. ECM gets to avoid 

searching its archives for correspondence. And ECM gets to limit its production on all other outstanding requests 

to whatever the 50 search terms hit—which means we’ll never see potentially tens of thousands of responsive 

documents. 

 Although we believe that both sides discharged their “meet and confer” obligation through Tuesday’s 

lengthy call about the issue, we’re happy to speak with you again at 10:00 AM Tuesday. If we’re unable to reach an 

agreement by that time, we’ll promptly seek relief. 

 There are three other issues. First, ECM has not responded to our interrogatory seeking annual revenues per 

customer (or distributor), although ECM’s response was due several weeks ago. On January 10, the Court held that 

ECM “has failed to demonstrate that ECM’s revenues by customer should not be disclosed in discovery.” Order at 

8. There’s no point to moving to compel this same information a second time, so we’re really out of 

options. Although we will meet and confer with you about this on Tuesday morning, we assume you won’t consent 

to the imposition of sanctions against ECM, so we anticipate seeking such sanctions on Tuesday 

afternoon. Obviously, if you have a change of heart about this, please let us know. 

CCX-A:4 at 2 PUBLIC DOCUMENT
3

Second, with respect to your proposed redactions, we have no objection, subject to your agreement that 

we’re not waiving or limiting any right to object to any improper redactions in the future. Assuming we’re in 

agreement, please go ahead and inform the Court accordingly. 

Third, after we noticed ECM’s corporate deposition on January 24, you objected to that date. On our call 

Tuesday, we were close to an agreement to move the deposition back almost a month, to February 18. You told us 

that you would confirm that date with Mr. Sinclair, ECM’s designee, and get back to us Wednesday, but it’s Friday 

afternoon, and we haven’t heard from you. Although our February 18 offer remains open, the January 24 

deposition notice remains effective. 

 Thanks, 

Jonathan Cohen 

Enforcement Division | Bureau of Consumer Protection | Federal Trade Commission 

600 Pennsylvania Avenue, N.W., M-8102B Washington, D.C. 20580 

(202) 326-2551 | jcohen2@ftc.gov 

CCX-A:4 at 3 PUBLIC DOCUMENT
Complaint Counsel

Exhibit A

Attachment 5

CCX-A:5
1

Cohen, Jonathan

From: Peter Arhangelsky <PArhangelsky@emord.com>

Sent: Monday, January 20, 2014 4:25 PM

To: Johnson, Katherine

Cc: Jillson, Elisa; Cohen, Jonathan; Jonathan Emord; Lou Caputo

Subject: ECM Supplemental Production

Attachments: ECM-FTC-001860-1904.pdf; Customer Certificate 121013.doc

Dear Katherine—Attached please find ECM’s further response to your discovery request numbers:  1‐6, 9, and 10 (First

RFPs); 1 (Second RFPs); and Interrogatory 2 (First set).  The response consists of a complete listing of revenues by receipt

from 2009 to the present, and supplemental promotional and technical material.  The financial information and pricing

is confidential under the Protective Order and is so marked.  It may not be disclosed publicly or on the public docket.

Sincerely,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com 

 

 

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this communication is protected from 

disclosure by the attorney-client privilege and the work product doctrine. If you are not the intended recipient, you should treat this 

communication as strictly confidential and provide it to the person intended. Duplication or distribution of this communication is prohibited 

by the sender. If this communication has been sent to you in error, please notify the sender and then immediately destroy the document. 

CCX-A:5 at 1 PUBLIC DOCUMENT
Complaint Counsel

Exhibit A

Attachment 6

CCX-A:6
1

Cohen, Jonathan

From: Peter Arhangelsky <PArhangelsky@emord.com>

Sent: Friday, January 10, 2014 4:35 PM

To: Johnson, Katherine

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo'

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents

Katherine,

  

I respond here to your email from yesterday and Jonathan’s email from January 9th at 2:24pm Eastern, both concerning

electronic discovery.  We have reviewed the ALJ’s Order issued today, and we intend to exhaust all avenues of review

with respect to certain portions of that decision.  However, as applicable here, Judge Chappell predicated part of his

ruling on your willingness to “negotiate search terms to reduce the number of responsive materials...”  See ALJ Opp. at

8.  The information I provide below should further that purpose.

  

As for the Microsoft Access database, the program generates reports in PDF format.  We were provided with the PDF

reports, and those are what we disclosed.  Because the PDF files are generated directly from the database program (e.g.,

printed to PDF), the content of those documents does not differ in any respect to the information contained within the

database.   

  

The number 142,078 reflects the total number of entries in ECM’s database.  For our initial production, ECM screened its

notes by selecting only prospective customers.  The entries were not screened or retrieved using keywords and, so,

those notes reflect the sum total of all material correspondence reported in the database for the entities selected.  The

balance of the 142,078 entries includes information concerning all of ECM’s former customers, inactive customers, and

active customers.  ECM can provide those records, subject to some agreement that will limit the breadth of information

as per the Judge’s ruling today.  We assume from your representations before the ALJ that you will honor your offer to

limit the scope of discovery and, to the extent that assumption is incorrect, we intend to file a motion for

reconsideration.

As I mentioned in my prior email, ECM does not sort its archived email files.  ECM employees preserve their emails by

printing into PDF files at the end of each day (or occasionally after several days).  Each single archived PDF thus contains

information among various contacts and subjects, i.e., a day’s worth of unsorted information.  Employees do this for

inbound and outbound messages separately and, so, each day results in two archived files.  To provide you with the

original email files referenced in our recent 1,200 page disclosure, someone must search each archived PDF file (which

number in the thousands), and then manually extract every responsive page from the larger PDF documents which also

contain unrelated messages.  We can generally estimate that of the 142,078 database notations (including files already

produced), at least two‐thirds to three‐quarters of those entries will correlate with email files.  So take the 8,540 notes

from our recent production as an example.  Even if only 5,600 of those notes represent email correspondence, ECM

would need to manually search each master PDF file from the days in question to find and then extract each of the 5,600

specific emails.  The dates involved spanned from 2006 and 2011, which might therefore involve thousands of archived

master PDF files.  If these discovery demands continue with ECM’s other customers, ECM would be required to search

for and manually extract perhaps over one hundred thousand emails.

  

That task alone could require weeks to complete at substantial cost to ECM, even with a team of staffers assigned.  As it

stands, ECM’s President, Bob Sinclair, is the only employee who can perform the bulk of this work.  Rule 3.31(c)(2)

specifically guards against the harms from this type of massive discovery burden, particularly when the “burden and

expense of the proposed discovery on a party ... outweigh its likely benefit.”  That seems quite applicable here, given

that you can examine the notations, and maybe compare those notes with a sampling of actual email files to verify

completeness.  To be clear, ECM is not stating that it refuses to provide original email files or attachments.  However

CCX-A:6 at 1 PUBLIC DOCUMENT
2

because the discovery burden is so substantial, ECM needs you to narrow your discovery requests within reasonable

limits, as contemplated by the Judge’s Order.  For instance, ECM can extract and disclose certain files or documents that

relate to specific issues or contacts (e.g., through global keyword inquiries).  That work remains burdensome, but far less

so than a comprehensive production of all files.   

  

ECM will not provide its entire archived folder for your review because those comingled files contain highly sensitive,

irrelevant, and privileged information, which would include documents and correspondence between attorneys and

personal contacts.  The best means to limit ECM’s burden is to prepare narrow discovery requests that fit within Rules

3.37(a) and 3.31(c)(2).  In this instance, your requests fail under Rule 3.31(c)(2)(i) and (iii) because the burden on ECM is

extraordinary when compared to the relative benefit you get from documents that only confirm the notes in ECM’s

database.   

  

I hope this sheds light on our concerns so that we can develop a joint resolution.  Please let us know if you have any

questions, or if you would like to discuss.

  

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com 

 

 

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this communication is protected from 

disclosure by the attorney-client privilege and the work product doctrine. If you are not the intended recipient, you should treat this 

communication as strictly confidential and provide it to the person intended. Duplication or distribution of this communication is prohibited 

by the sender. If this communication has been sent to you in error, please notify the sender and then immediately destroy the document. 

From: Johnson, Katherine [mailto:kjohnson3@ftc.gov]  

Sent: Thursday, January 09, 2014 1:02 PM

To: Peter Arhangelsky

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo'

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents

Peter:

I appreciate the clarification that this document was not prepared for litigation, and reflects records as maintained in the

ordinary course of ECM’s business.  The reason I described them as “unrepresentative” is because you informed us that

the document contains only 8,540 separate notes out of 142,078.  We have no idea how you or ECM selected the 8,540

notes that were produced.  Do these represent the complete log of all communications with all of ECM’s potential

customers during that timeframe?  If not, what subset does this represent and how was it selected?

We stand by our position that we are entitled to all of the underlying communications with potential customers, not just

the summaries of those communications.  We are not trying to increase the burden on ECM or you.  One way to reduce

the burden is for ECM to produce its entire archived database subject to a clawback agreement for privileged or

protected documents.  If there is no way to partition the archive to give us only the portion that pertains to

prospective/non‐current customers, then I think we need further discussion to understand how ECM maintains its

archived files.   

Katherine

_________________________________________ 

Katherine E. Johnson, Attorney 

Division of Enforcement 

CCX-A:6 at 2 PUBLIC DOCUMENT
3

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnson3@ftc.gov

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com] 

Sent: Thursday, January 09, 2014 10:39 AM 

To: Johnson, Katherine 

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Katherine,

Preliminarily, we note that our December 27th production was an initial disclosure.  As we stated in our response, we

intend to supplement that production with responsive documents, particularly after the ALJ resolves the pending

discovery dispute.  The summaries we produced come from ECM’s Microsoft Access database, and reflect the system by

which ECM logs files.  ECM employees are instructed to accurately input all relevant information from verbal and written

correspondence into the database.  ECM relies on those notations, not the original emails, to log activities and

discussions with external parties.  The summaries in ECM’s database were therefore entered in the ordinary course of

business.  I am confused by your use of the term “unrepresentative” to describe those entries.  Can you explain what

you meant before we reply directly on that point?  For instance, if you suggest that the summaries were prepared in

anticipation of litigation, or for litigation purposes, we can clarify that they were not.

To the extent the original emails exist, production of all such files imposes a considerable burden.  Bob Sinclair is

essentially the only ECM employee who can perform this task.  While ECM logs its correspondence in the notations we

produced, it does not sort the original files that are ultimately archived (which are rendered unnecessary to ECM by the

summary notations).  All original email files are initially transferred to a global correspondence folder where they remain

for a short time, and then eventually archived for backup.  To produce an email referenced in the notations, someone

must manually search all archived folders for keywords that hit on the original file.  That process is incredibly time

consuming, and would eventually yield volumes of cumulative documents (in the tens of thousands).  Production of “all

responsive documents” could therefore require weeks of Bob’s time at a substantial loss for ECM.  

If anything, our initial production evidences the exceptionally overbroad nature of your discovery requests.  We have

discussed this issue with you before, to wit, the fact that your overbroad requests reach every document in ECM’s

control.  You requested all documents related to “ECM Additives.”  Part of our pending motion for a protective order

seeks to limit the expansive nature of your document requests to a manageable level.  We had hoped that our recent

production would provide you enough information to narrow your requests, balancing your need for information with

ECM’s discovery burdens.  Your instant request for production of tens of thousands of documents, regardless of their

relevance, and at considerable expense to ECM, only supports our motion for a protective order.  For instance, rather

than select from a subset of the 900+ prospective customers disclosed, or a subset of documents by file type or

keyword, you have demanded everything, including emails that have nothing to do with the core issues in

controversy.  That approach also belies any claim that you would reasonably limit discovery of ECM’s existing customers

if given complete access.

We are happy to discuss at some point this week.  Our position is that we have already sought relief from your

document requests and, until the ALJ rules on this pressing issue, your requests that are governed by that motion are

unwarranted.  If, on the other hand, you can suggest limiting principles designed to reach specific information, we can

discuss with our client the feasibility of proceeding.  I see no reason why we cannot agree to narrow discovery with

respect to the potential customers ECM just disclosed.

CCX-A:6 at 3 PUBLIC DOCUMENT
4

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com 

 

 

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this communication is protected from 

disclosure by the attorney-client privilege and the work product doctrine. If you are not the intended recipient, you should treat this 

communication as strictly confidential and provide it to the person intended. Duplication or distribution of this communication is prohibited 

by the sender. If this communication has been sent to you in error, please notify the sender and then immediately destroy the document. 

From: Johnson, Katherine [mailto:kjohnson3@ftc.gov]  

Sent: Wednesday, January 08, 2014 1:45 PM

To: 'Lou Caputo'; Peter Arhangelsky

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents

Lou and Peter:

After reviewing the document production ECM‐FTC‐000648‐001859, we understand that these are summaries of

communications between individuals at ECM and potential customers.  You have requested that we select from this

incomplete, and potentially unrepresentative set of information to “ascertain which individual records [Complaint

Counsel] finds relevant and about which they desire further information and/or documentation.”  ECM must produce all

responsive documents and make available the actual communications, not just the summaries.

If you think this requires further discussion over the phone, please let me know what your availability is like tomorrow.

Katherine

_________________________________________ 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnson3@ftc.gov

From: Lou Caputo [mailto:lcaputo3@gmail.com] 

Sent: Friday, December 27, 2013 4:54 PM 

To: Johnson, Katherine; Jillson, Elisa; Cohen, Jonathan 

Cc: Jonathan Emord; Peter Arhangelsky 

Subject: ECM Response to FTC First Set of Requests for Production of Documents 

Dear Katherine, 

 

Please find attached ECM’s Responses and Objections to your First Set of Requests for Production of 

Documents. Attachment A is also included. Attachment A contains material responsive to most all of your 

requests and is described further in ECM's pleading. Attachment A is over 1200 pages. ECM continues, 

however, to search for additional materials responsive to your Requests. 

 

CCX-A:6 at 4 PUBLIC DOCUMENT
5

I left a voicemail with Jonathan (Cohen) earlier this morning, but have not heard back. I wanted to speak with 

him about file formatting and his concerns noted in prior emails. The files produced in Attachment A are in 

PDF, which is how ECM maintains such records in the course of its regular business. 

 

I will be out of the office next week, but Peter is available to discuss how best to resolve file conversion issues. 

 

Please let us know if you have any questions. 

 

Thanks, 

 

 

Lou Caputo | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (602) 388-8901 | 

Facsimile: (602) 393-4361 | www.emord.com

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this communication is protected from disclosure 

by the attorney-client privilege and the work product doctrine. If you are not the intended recipient, you should treat this communication as strictly 

confidential and provide it to the person intended. Duplication or distribution of this communication is prohibited by the sender. If this communication 

has been sent to you in error, please notify the sender and then immediately destroy the document.

 

CCX-A:6 at 5 PUBLIC DOCUMENT