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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 

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

MOTION TO PLACE DISCOVERY MOTIONS ON THE PUBLIC RECORD 

 Respondent ECM BioFilms, Inc. (“ECM”) hereby opposes Complaint Counsel’s Motion 

to Place Discovery Motions on the Public Record. Complaint Counsel has filed its motion in 

derogation of Rule 3.22(g) and paragraph 5 of this Court’s Scheduling Order, having done so 

without first satisfying the obligation to confer with ECM (omitting, therefore, the Rule 3.22(g) 

statement required for its motion). On December 30, 2013, Complaint Counsel filed a public 

version of its motion which revealed information ECM deemed protected under his Honor’s 

Protective Order. ECM therefore requests that his Honor order that Complaint Counsel’s 

December 30th “public” document be stricken from the record, and censure Complaint Counsel 

for unilaterally breaching this Court’s Protective Order without affording ECM due process.1

 

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 The proper procedure for withdrawing a “confidential” designation is through a motion 

filed with the Office of the ALJ, and then disclosing only upon an order permitting same. By 

filing its motion public on December 30 before any such order, Complaint Counsel essentially 

granted itself the relief it requested, violating this Court’s Protective Order and the Rule 3.22(g) 

meet and confer requirements. That disclosure was a deliberate violation of 16 C.F.R. § 4.10, 16 

C.F.R. § 4.2, 15 U.S.C. § 57b-2(c). See In the Matter of Basic Research, L.L.C., et al., Docket 

No. 9318, 2005 WL 1541546, *4-5 (F.T.C. June 17, 2005) (holding that disclosure of 

01 06 2014
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On December 13, 2013, ECM filed a motion for a protective order seeking a reasonable 

limit on the quantum of Complaint Counsel discovery against ECM customers. In its motion, 

ECM explained 

 

 The discovery motions should therefore be protected from 

disclosure consistent with Rules 3.45(e), 3.22(c), and 4.10, and with paragraph 9 of this Court’s 

Protective Order. 

Without conferring on this point, Complaint Counsel filed a motion on Monday, 

December 23, 2013, seeking a complete public release of the content that ECM designated 

“confidential” in its motions. Complaint Counsel’s motion was filed in haste without the 

                                                            

confidential files by Complaint Counsel in violation of Protective Order was subject to 

remedies). ECM shall pursue those remedies. 
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requisite statement under Rule 3.22(g). Under the Scheduling Order, the motion is subject to 

summary denial on that ground alone. See Scheduling Order, ¶ 5 (Nov. 21, 2013). 

The entirety of ECM’s motion should be given in camera protection because (a) the 

entire subject matter of the document is highly sensitive, disclosure of which is likely to cause 

injury; (b) the document is replete with confidential facts; and (c) Complaint Counsel has 

advanced no countervailing public interest in the information which outweighs the foreseeable 

risks of injury to ECM.

 

, the subject 

matter of the motion for a protective order is highly sensitive and in need of protection. 

 This Court’s existing Protective 

Order protects “confidential material,” which is defined as “any document ... that contains ... 

competitively sensitive information.” See Protective Order at ¶ 1. “Competitively sensitive 

information” has been defined as “information that has economic value from not being generally 

known, and that has been the subject of reasonable efforts aimed at secrecy, and the disclosure of 

which is likely to result in a clearly defined and very serious injury to the designating party by 

providing a competitor with information that would give it a competitive advantage in ongoing 

or reasonably foreseeable competitions.” Lockheed Martin Corp. v. Boeing Co., 6:03CV796 
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ORL28KRS, 2005 WL 5278461 at *4 (M.D. Fla. Jan. 26, 2005). been 

deemed “competitively sensitive information.” See, e.g., F.T.C. v. Foster, CIV 07-352 JBACT, 

2007 WL 2219410 at *7 (D.N.M. Apr. 26, 2007). 

Here ECM’s President, Robert Sinclair, provided a sworn statement revealing that 

 ECM Mot. for Prot. Order, Exh. B (Sinclair Decl.), at ¶¶ 13-18. 

 

 Its motion for a protective order relied heavily on statements from Mr. 

Sinclair that explained the 

 Id. at ¶ 18. 

 Moreover, ECM filed a public version of its motion for protective order that redacts only 

that content which is likely to cause competitive injury, leaving the fact of the motion’s filing 

and the overall nature of the objection unobscured. The redacted portions present discussion of 

Complaint Counsel’s request for information concerning ECM’s . ECM 

redacted that content because Complaint Counsel’s very request for information creates a risk of 

competitive injury and customer loss. Notwithstanding, ECM was entitled under the Protective 

Order to redact information concerning its business losses and business practices, including the 

information discussed in Mr. Sinclair’s declaration. His declaration included statements about 

efforts he undertakes to maintain customer goodwill, and 

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its position secret.” Conclusory and speculative assertions of that kind fail to tip the balance in 

favor of public release against the specific facts and sound reasoning revealing economic injury 

that Respondent has presented. The law requires a careful balancing of the public right to 

information against the risk of harm. See, e.g., Republic Servs., Inc. v. Liberty Mut. Ins. 

Companies, CIV.A. 03-494-KSF, 2006 WL 1635655 at *6 (E.D. Ky. June 9, 2006); Wiggins v. 

Burge, 173 F.R.D. 226, 228 (N.D.Ill.1997) (court must balance “the harm to the party seeking 

the protective order and the importance of disclosure to the public.”). The public’s right to 

judicial records is not absolute. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597-98 

(1978). Here, ECM has documented at least two instances where Complaint Counsel’s 

investigation resulted 

ECM has offered a sworn statement revealing that 

 unless ECM is afforded the relief requested in its motion for protective order. Assuming 

that the public has at least some right to judicial records, ECM’s limited request for 

confidentiality does not impair that right at all. ECM limits its request for confidentiality to a 

narrow group of discovery pleadings concerning Complaint Counsel’s request for all ECM 

customer information. It is not this narrow discovery dispute but the contest over what if 

anything cited by FTC constitutes deceptive advertising that defines the substance of public 

interest in this case. ECM’s submission of a limited public document is sufficient to put the 

public on notice that discovery is underway, involves certain ECM customers, and involves 

requests for a certain category of information. Moreover, his Honor’s ultimate Order concerning 

ECM’s motion for a protective order will be a public document. Complaint Counsel has not, 

therefore, explained why a general conclusory assertion of public interest in judicial records, 

shorn of supportive fact and justification and which leaves ECM’s claim of injury substantively 
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uncontroverted, should outweigh a specific and palpable showing of prospective economic injury 

by ECM associated with a very narrow category of information which, in and of itself, has no 

public interest value. 

For the foregoing reasons, ECM respectfully requests that his Honor deny Complaint 

Counsel’s Motion to Place Discovery Motions on the Public Record, and accept as sufficient the 

redacted motion for protective order that ECM has placed on the public docket, thereby sparing 

ECM from the very likely prospect of severe economic injury. 

 

 Respectfully submitted, 

 

 Jo 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

 Facsimile: 202-466-6938 

 Email: jemord@emord.com

DATED: January 6, 2014 

 

 
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STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent’s Counsel hereby states that the subject matter of this 

instant Opposition is confidential and contains 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. 

 

 Jo 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

 
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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 MOTION TO PLACE 

DISCOVERY MOTIONS ON THE PUBLIC RECORD 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