11 18 2014

Aquaforest TIFF Junction Evaluation 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

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DOCKET NO. 9358 

ORDER DENYING MOTION BY NON-PARTY FOR COST REIMBURSEMENT 

I. 

On November 14, 2014, non-party Biodegradable Products Institute ("BPI") filed a 

Motion for Cost Reimbursement ("Motion") seeking reimbursement for costs incurred in 

locating and producing documents in compliance with the subpoena served upon it by 

Respondent ECM BioFilms, Inc. ("Respondent" or "ECM"). 1 Respondent filed its Opposition to 

the Motion on November 11, 2014 ("Opposition"). For the reasons set forth below, the Motion 

is DENIED. 

II. 

BPI states that Respondent directed a subpoena to BPI requesting production of 

documents; that counsel for BPI conferred with Respondent's counsel in an effort to narrow the 

scope of production; that BPI produced responsive documents to Respondent; that BPI sent an 

invoice to Respondent for the costs it incurred in collecting, reviewing and transmitting 

documents; and that Respondent has not paid the invoiced amount. BPI argues that non-party 

witnesses may be compensated to cover the cost of producing documents in response to a 

subpoena, citing FTC Operating Manual §10.13.6.4.7.8. BPI further argues that the Federal 

Rules of Civil Procedure may be consulted for guidance and interpretation of FTC Rules where 

no other authority exists and that Rule 45 of the Federal Rules of Civil Procedure requires the 

court to protect a non-party by requiring the party seeking discovery to bear enough of the 

expenses of complying with the subpoena so that compliance with the subpoena does not impose 

a significant expense on the non-party. 

1 BPI served its Motion on Respondent on November 7, 2014, and also on that date provided a courtesy copy of its 

Motion to the Office of Administrative Law Judges. Due to procedural issues, the Motion was not accepted for 

filing until November 14, 2014. 
Aquaforest TIFF Junction Evaluation 

Respondent argues that BPI has made no showing that the Respondent's subpoena was 

unreasonable and has failed to allege any factual basis that would justify an award of costs. 

Respondent states that, although it worked with BPI to narrow the scope of certain discovery 

requests, at no point did Respondent agree to pay BPI's costs. BPI never formally objected to 

Respondent's subpoena; never filed a motion to quash or limit the subpoena; and never filed a 

motion for a protective order. 2 

III. 

BPI relies upon Section 13.6.4.7.8 ofthe FTC's Operating Manual, which states: "Third 

party witnesses may move for recompense to cover the cost of producing voluminous records in 

response to a subpoena. When appropriate, the ALJ s have entered such an order; in such event, 

the proponent of the subpoena must tender payment." FTC Operating Manual§ 13.6.4.7.8. 

"[T]he Manual offers only guidance, not a rule; moreover it is directed only at the FTC staff." In 

re lnt'l Ass 'n ofConference Interpreters, 1995 FTC LEXIS 307 (Nov. 1, 1995); FTC Operating 

Manual§ 1.1 ("This Operating Manual (OM) provides the Commission's staffwith guidance in 

processing matters within the agency and in carrying out law enforcement assignments."). 

"Where the Federal Rules of Civil Procedure are similar to the Commission's Rule of 

Practice, those rules and case law interpreting them may be useful[, though not controlling,] in 

adjudicating a dispute. In re L.G. Balfour Co., No. 8435, 61 F.T.C. 1491, 1492, 1962 FTC 

LEXIS 367, *4 (Oct. 5, 1962)." In re Gemtronics, Inc., 2010 FTC LEXIS 40, *10 (April27, 

2010). In the circumstances presented here, Rule 45 ofthe Federal Rules of Civil Procedure 

does not warrant the issuance of an order compelling Respondent to reimburse BPI for its 

expenses of complying with Respondent's subpoena. 

The Commission, in In re Int'l Tel. & Tel. Corp., 97 F.T.C. 202, 1981 FTC LEXIS 75 

(March 13, 1981 ), held that a "subpoenaed party is expected to absorb the reasonable expenses 

of compliance as a cost of doing business, but reimbursement by the proponent of the subpoena 

is appropriate for costs shown by the subpoenaed party to be unreasonable." 1981 FTC LEXIS 

75, at *3. See In re R.R. Donnelley & Sons Co., 1991 FTC LEXIS 268, at *1-2 (June 6, 1991) 

(holding that subpoenaed party "can be required to bear reasonable costs of compliance with the 

subpoena"). To determine whether expenses are "reasonable," the Administrative Law Judge 

"should compare the costs of compliance in relation to the size and resources of the subpoenaed 

party." Int'l Tel. & Tel., 1981 FTC LEXIS 75, at *3. 

In support of its request for costs, BPI avers that it produced 4,357 pages of documents 

and that its costs in collecting, reviewing, and copying the requested documents totaled $5,060. 

BPI has not provided information on the costs of compliance in relation to the size and resources 

of BPI. 

2 Because the Motion is decided on the substantive issues, Respondent's arguments regarding the procedural defects 

of the Motion need not be, and are not, addressed. 

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Aquaforest TIFF Junction Evaluation 

Respondent asserts that the information requested was relevant to ECM's technology, and 

testing of competing additive technologies; and that the BPI documents produced were directly 

relevant to issues in this case, with several BPI documents admitted as exhibits in this case. 

Respondent served its subpoena on BPI on January 24, 2014. BPI did not move to quash 

or limit the subpoena at any time after it was served. The question of whether ECM's subpoena 

imposed an undue burden will not be addressed ten months after the subpoena was served. BPI 

has not met its burden of demonstrating that the costs of compliance were unreasonable. 

IV. 

For the reasons set forth above, BPI's Motion is DENIED. 

ORDERED: 

Chief Administrative Law Judge 

Date: November 18,2014 

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