UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

ORIGINAL

In the Matter of

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SECREARY

ECM BioFilms, Inc.,

a corporation, also d//a

Enviroplastics International,

Respondent.

DOCKET NO. 9358

SCHEDULING ORDER

Januar 17,2014 Complaint Counsel provides preliminary witness list (not including

experts) with a brief summar of the proposed testimony.

Januar 31, 2014 Respondent's Counsel provides preliminar witness lists (not

including experts) with a brief sumary of the proposed testimony.

February 28,2014 Deadline for issuing document requests, interrogatories and

subpoenas duces tecum, except for discovery for puroses of

authenticity and admissibility of exhibits.

March 5, 2014 Complaint Counsel provides expert witness list.

March 12,2014 Respondent's Counsel provides expert witness list.

March 20,2014 Deadline for issuing requests for admissions, except for requests

for admissions for puroses of authenticity and admissibilty of

exhibits.

April 3, 2014 Close of discovery, other than discovery permitted under Rule

3.24(a)(4), depositions of experts, and discovery for puroses of

authenticity and admissibility of exhbits.

April 16, 2014 Deadline for Complaint Counsel to provide expert witness reports.

April 24, 2014 Complaint Counsel provides to Respondent's Counsel its final

proposed witness and exhbit lists, including depositions or
designated portions thereof, copies of all exhibits (except for

demonstrative, ilustrative or sumary exhibits and expert related

exhbits), Complaint Counsel's basis of admissibility for each

proposed exhbit, and a brief sumary of the testimony of each

witness.

Complaint Counsel serves couresy copies on ALI of its final

proposed witness and exhibit lists, its basis of admissibility for

each proposed exhibit, and a brief sumar of the testimony of

each witness, including its expert witnesses.

April 30, 2014 Deadline for Respondent's Counsel to provide expert witness

reports. Respondent's expert report shall include (without

limitation) rebuttal, if any, to Complaint Counsel's expert witness

report(s).

May 7,2014 Respondent's Counsel provides to Complaint Counsel its final

proposed witness and exhibit lists, including depositions or

designated portions thereof, copies of all exhibits (except for

demonstrative, ilustrative or sumar exhbits and expert related

exhibits), Respondent's basis of admissibility for each proposed

exhbit, and a brief sumar of the testimony of each witness.

Respondent's Counsel serves couresy copies on ALJ its final

proposed witness and exhibit lists, its basis of admissibilty for

each proposed exhibit, and a brief sumary of the testimony of

each witness, including its expert witnesses.

May 8, 2014 Paries that intend to offer confdential materials of an opposing

pary or non-pary as evidence at the hearing must provide notice

to the opposing pary or non-pary, pursuant to 16 C.F.R. § 3.45(b).

See Additional Provision 7.

May 12,2014 Complaint Counsel to identify rebuttal expert(s) and provide

rebuttal expert report(s). Any such reports are to be limited to

rebuttal of matters set forth in Respondent's expert reports. If

material outside the scope of fair rebuttal is presented, Respondent

wil have the right to seek appropriate relief (such as striking

Complaint Counsel's rebuttal expert reports or seeking leave to

submit surebuttal expert reports on behalf of Respondent).

May 12,2014 Exchange deposition transcript counter-designations.

May 16,2014 Deadline for depositions of experts (including rebuttal experts) and

exchange of expert related exhibits.

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May 20,2014 Deadline for filing motions for in camera treatment of proposed

trial exhbits.

May 20,2014 Deadline for filing motions in limine to preclude admission of

evidence. See Additional Provision 9.

May 23, 2014 Deadline for fiing motions for in camera treatment of proposed

expert related exhibits.

May 27, 2014 Deadline for fiing responses to motions for in camera treatment of

proposed trial exhibits.

May 27,2014 Deadline for fiing responses to motions in limine to preclude

admissions of evidence.

May 28,2014 Exchange and serve couresy copy on ALJ objections to final

proposed witness lists and exhibit lists.

May 28,2014 Exchange objections to the designated testimony to be presented

by deposition and counter-designations.

May 30, 2014 Deadline for filing responses to motions for in camera treatment of

proposed expert related exhbits.

May 30,2014 Complaint Counsel fies pretrial brief supported by legal authority.

June 2, 2014 Exchange proposed stipulations of law, facts, and authenticity.

June 6, 2014 Respondent's Counsel files pretrial brief supported by legal

authority.

June 11,2014 File final stipulations of law, facts, and authenticity. Any

subsequent stipulations may be offered as agreed by the paries.

June 12,2014 Final prehearing conference to begin at 10:00 a.m. in FTC

Courroom, Room 532, Federal Trade Commission Building, 600

Pennsylvana Avenue, NW, Washington, DC 20580.

The paries are to meet and confer prior to the conference

regarding trial logistics and proposed stipulations of law, facts, and

authenticity of exhibits and any designated deposition testimony.

To the extent the paries stipulate to certain issues, the paries shall

prepare a Joint Exhibit which lists the agreed stipulations.

Counsel may present any objections to the final proposed witness

lists and exhibits, including to any designated deposition

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testimony. Trial exhibits wil be admitted or excluded to the extent

practicable. To the extent the paries agree to the admission of

each other's exhibits, the paries shall prepare a Joint Exhbit

which lists the exhibits to which neither side objects. Any Joint

Exhibit wil be signed by each pary. (Do not include a signatue

line for the ALJ.)

June 18,2014 Commencement of Hearing, to begin at 10:00 a.m. in FTC

Courroom, Room 532, Federal Trade Commission Building, 600

Pennsylvania Avenue, NW, Washington, DC 20580.

ADDITIONAL PROVISIONS

1. For all papers that are required to be filed with the Office of the Secretar, the paries

shall serve a couresy copy on the Administrative Law Judge by electronic mail to the following

email address: oalj@ftc.gov. The couresy copy should be transmitted at or shortly after the time

of any electronic fiing with the Offce of the Secretary. The oalj@ftc.gov email account is to be

used only for couresy copies of pleadings fied with the Offce of the Secretar and for

documents specifically requested of the parties by the Offce of Administrative Law Judges.

Certificates of service for any pleading shall not include the OALJ email address, or the email

address of any OALJ personneL, including the Chief ALJ, but rather shall designate only 600

Pennsylvana Ave., NW, RI. H-ll 0 as the place of service. The subject line of all electronic

submissions to oalj@ftc.gov shall set forth only the Docket Number and the title of the

submission. The paries are not required to serve a couresy copy to the OALJ in hard copy,

except upon request. In any instance in which a couresy copy of a pleading for the

Administrative Law Judge canot be effectuated by electronic mail, counsel shall hand deliver a

hard copy to the Offce of Administrative Law Judges. Discovery requests and discovery

responses shall not be submitted to the Offce of Administrative Law Judges. The paries are

reminded that all filings with the Office of the Secretary, including electronic fiings, are

governed by the provisions of Commission Rule 4.3( d), which states: "Documents must be

received in the Offce of the Secretary of the Commission by 5 :00 p.m. Eastern time to be

deemed filed that day. Any documents received by the agency after 5:00 p.m. wil be deemed

filed the following business day."

2. The paries shall serve each other by electronic mail and shall include "Docket

9358" in the re line and all attached documents in .pdfformat. Complaint Counsel and

Respondent's Counsel agree to waive their rights to Service under 16 C.F.R. § 4.4(a)-(b).

3. Each pleading that cites to unpublished opinions or opinions not available on

LEXIS or WESTLA W shall include such copies as exhibits.

4. Each motion (other than a motion to dismiss or a motion for sumar

decision) shall be accompaned by a separate signed statement representing that counsel for the

moving pary has conferred with opposing counsel in an effort in good faith to resolve by

agreement the issues raised by the motion and has been unable to reach such an agreement. In

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addition, pursuant to Rule 3.22(g), for each motion to quash filed pursuant to § 3.34(c), each

motion to compel or determine suffciency pursuant to § 3.38(a), or each motion for sanctions

pursuant to § 3.38(b), the required signed statement must also "recite the date, time, and place of

each .. . conference between counsel, and the names of all paries participating in each such

conference." Motions that fail to include such separate statement may be denied on that ground.

5. Rule 3.22(c) states:

All written motions shall state the paricular order, ruling, or action desired and

the grounds therefor. Memoranda in support of, or in opposition to, any

dispositive motion shall not exceed 10,000 words. Memoranda in support of, or

in opposition to, any other motion shall not exceed 2,500 words. Any reply in

support of a dispositive motion shall not exceed 5,000 words and any reply in

support of any other motion authorized by the Administrative Law Judge or the

Commission shall not exceed 1,250 words.

If a party chooses to submit a motion without a separate memorandum, the word count limits of

3 .22( c) apply to the motion. If a part chooses to submit a motion with a separate memorandum,

absent prior approval of the ALJ, the motion shall be limited to 750 words, and the word count

limits of 3 .22( c) apply to the memorandum in support of the motion. This provision applies to

all motions fied with the Administrative Law Judge, including those fied under Rule 3.38.

6. If papers filed with the Offce of the Secretary contain in camera or

confidential material, the filing pary shall mark any such material in the complete version of

their submission with (bold font and bracesl. 16 C.F.R. § 3.45(e). Parties shall be aware of the

rules for fiings containing such information, including 16 C.F.R. § 4.2.

7. If a part intends to offer confdential materials of an opposing pary or non-pary as

evidence at the hearing, in providing notice to such non-pary, the parties are required to inform

each non-pary of the strict standards for motions for in camera treatment for evidence to be

introduced at trial set forth in 16 C.F.R. § 3.45, explained in In re Dura Lube Corp., 1999 FTC

LEXIS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc., 2000 FTC LEXIS 157 (Nov.

22,2000) and 2000 FTC LEXIS 138 (Sept. 19,2000); In re Basic Research, Inc., 2006 FTC

LEXIS 14 (Jan. 25, 2006), and sumarized herein. Motions also must be supported by a

declaration or affdavit by a person qualified to explain the confidential nature of the documents.

In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23, 2004). Each pary or

non-pary that files a motion for in camera treatment shall provide one copy of the documents for

which in camera treatment is sought to the Administrative Law Judge.

8. If the expert reports prepared for either pary contain confidential information that has

been granted in camera treatment, the party shall prepare two versions of its expert report( s) in

accordance with Provision 6 of this Scheduling Order and 16 C.F.R. § 3.45(e).

9. Motions in limine are discouraged. Motion in limine refers "to any motion, whether

made before or during trial, to exclude anticipated prejudicial evidence before the evidence is

actually offered." In re Daniel Chapter One, 2009 FTC LEXIS 85, *18-20 (April 20, 2009)

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(citing Luce v. United States, 469 U.S. 38,40 n.2 (1984)). Evidence should be excluded in

advance of trial on a motion in limine only when the evidence is clearly inadmissible on all

potential grounds. Id. (citing Hawthorne Partners v. AT&T Technologies, Inc., 8~ 1 F. Supp.

1398, 1400 (N.D. Il. 1993); Sec. Exch. Comm 'n v. us. Environmental, Inc., 2002 U.S. Dist.

LEXIS 19701, at *5-6 (S.D.N.Y. Oct. 16,2002)). Moreover, the risk of prejudice from giving

undue weight to marginally relevant evidence is minimal in a bench trial such as this where the

judge is capable of assigning appropriate weight to evidence.

1 O. Compliance with the scheduled end of discovery requires that the parties serve

subpoenas and discovery requests sufficiently in advance of the discovery cut-off and that all

responses and objections will be due on or before that date, unless otherwise noted. Any motion

to compel responses to discovery requests shall be fied within 30 days of service of the

responses and/or objections to the discovery requests or within 20 days after the close of

discovery, whichever first occurs.

11. Each pary is limited to 50 document requests, including all discrete subpars;

25 interrogatories, including all discrete subparts; and 50 requests for admissions including all

discrete subparts except that there shall be no limit on the number of requests for admission for

authentication and admissibility of exhibits. Any single interrogatory inquiring as to a request

for admissions response may address only a single such response. There is no limit to the

number of sets of discovery requests the paries may issue, so long as the total number of each

type of discovery request, including all subpars, does not exceed these limits. Within seven

days of service of a document request, the parties shall confer about the format for the

production of electronically stored information.

12. The deposition of any person may be recorded by videotape, provided that the

deposing pary notifies the deponent and all paries of its intention to record the deposition by

videotape at least five days in advance of the deposition. No deposition, whether recorded by

videotape or otherwse, may exceed a single, seven-hour day, unless otherwise agreed to by the

paries or ordered by the Administrative Law ludge.

13. The paries shall serve upon one another, at the time of issuance, copies of all

subpoenas duces tecum and subpoenas ad testifcandum. For subpoenas ad testifcandum, the

pary seeking the deposition shall consult with the other paries before the deposition date is

scheduled. The paries need not separately notice the deposition of a third par noticed by an

opposing pary. At the request of any party, the time and allocation for a third pary deposition

shall be divided evenly between them, but the noticing pary may use any additional time not

used by the opposing pary. If no pary makes such a request, cross-examination of the witness

wil be limited to one hour.

14. Non-paries shall provide copies or make available for inspection and

copying of documents requested by subpoena to the pary issuing the subpoena. The pary that

has requested documents from non-paries shall provide copies of the documents received from

non-paries to the opposing party within three business days of receiving the documents. No

deposition of a non-pary shall be scheduled between the time a non-party provides documents in

response to a subpoena duces tecum to a pary, and 3 days after the pary provides those

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documents to the other pary, unless a shorter time is required by unforeseen logistical issues in

scheduling the deposition, or a non-party produces those documents at the time of the deposition

as agreed to by all paries involved.

15. The final witness lists shall represent counsels' good faith designation of all

potential witnesses who counsel reasonably expect may be called in their case-in-chief. Paries

shall notify the opposing par promptly of changes in witness lists to facilitate completion of

discovery within the dates of the scheduling order. The final proposed witness list may not

include additional witnesses not listed in the preliminar witness lists previously exchanged

unless by consent of all parties, or, ifthe paries do not consent, by an order of the

Administrative Law Judge upon a showing of good cause.

16. The final exhibit lists shall represent counsels' good faith designation of all

trial exhibits other than demonstrative, ilustrative, or sumar exhibits. Additional exhbits

may be added after the submission of the final lists only by consent of all paries, or, if the

paries do not consent, by an order of the Administrative Law Judge upon a showing of good

cause.

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17. Witnesses shall not testify to a matter unless evidence is introduced sufficient

to support a finding that the witness has personal knowledge of the matter. F .R.E. 602.

18. Witnesses not properly designated as expert witnesses shall not provide

opinions beyond what is allowed in F.R.E. 701.

19. The paries are required to comply with Rule 3.31A and with the following:

(a) At the time an expert is first listed as a witness by a pary, that party shall

provide to the other party:

(i) materials fully describing or identifying the background and qualifications of

the expert, all publications authored by the expert within the preceding ten years, and all prior

cases in which the expert has testified or has been deposed within the preceding four years; and

(ii) transcripts of such testimony in the possession, custody, or control of the

producing pary or the expert.

(b) At the time an expert report is produced, the producing pary shall provide to the

other pary all documents and other written materials relied upon by the expert in formulating an

opinion in this case. Unless otherwise agreed by the paries, the experts' notes and drafts of

expert reports need not be produced. Likewise, communications between experts and with

counsel or consultants need not be produced unless relied upon by the expert in formulating an

opinion in this case.

(c) It shall be the responsibility of a pary designating an expert witness to ensure that the

expert witness is reasonably available for deposition in keeping with this Scheduling Order.

Unless otherwise agreed to by the parties or ordered by the Administrative Law Judge, expert

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witnesses shall be deposed only once and each expert deposition shall be limited to one day for

seven hours.

(d) Each expert report shall include a complete statement of all opinions to be expressed

and the basis and reasons therefore; the data or other information considered by the expert in

forming the opinions; any exhibits to be used as a sumar of or support for the opinions; the

qualifications of the expert; and the compensation to be paid for the study and testimony.

(e) A pary may not discover facts known or opinions held by an expert who has been

retained or specially employed by another party in anticipation of this litigation or preparation

for hearing and who is not designated by a party as a testifying witness.

(f) At the time of service of the expert reports, a pary shall provide opposing counsel (i)

a list of all commercially-available computer programs used by the expert in the preparation of

the report; (ii) a copy of all data sets used by the expert, in native file format and processed data

fie format; and (iii) all customized computer programs used by the expert in the preparation of

the report or necessar to replicate the findings on which the expert report is based.

20. Properly admitted deposition testimony and properly admitted investigational

hearing transcripts are part of the record and need not be read in open cour. Videotape

deposition excerpts that have been admitted in evidence may be presented in open cour only

upon prior approval by the Administrative Law Judge.

21. The paries shall provide one another, and the Administrative Law Judge, no

later than 48 hours in advance, not including weekends and holidays, a list of all witnesses to be

called on each day of hearing, subject to possible delays or other unforeseen circumstances.

22. The paries shall provide one another with copies of any demonstrative,

ilustrative or sumar exhibits (other than those prepared for cross-examination) 24 hours

before they are used with a witness.

23. Complaint Counsel's exhbits shall bear the designation CX and Respondent's

exhibits shall bear the designation RX or some other appropriate designation. Complaint

Counsel's demonstrative exhbits shall bear the designation CXD and Respondent's

demonstrative exhibits shall bear the designation RXD or some other appropriate designation.

Both sides shall number the first page of each exhibit with a single series of consecutive

numbers. When an exhibit consists of more than one piece of paper, each page of the exhibit

must bear a consecutive control number or some other consecutive page number. Additionally,

paries must account for all their respective exhbit numbers. Any number not actually used at

the hearing shall be designated "intentionally not used."

24. At the final prehearing conference, counsel wil be required to introduce all

exhibits they intend to introduce at triaL. The parties shall confer and shall eliminate duplicative

exhbits in advance of the final prehearing conference and, if necessary, during triaL. For

example, if RX 100 and CX 200 are different copies of the same document, only one of those

documents shall be offered into evidence. In addition, the paries shall confer in advance of the

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final prehearing conference to prepare a Joint Stipulation that lists the proposed exhibits to which

neither pary has an objection to admissibility. Additional exhbits may be added after the final

prehearing conference only by order of the Administrative Law Judge upon a showing of good

cause. Counsel shall contact the cour reporter regarding submission of exhbits.

ORDERED: 32~¥t

D. Michael Chappe

Chief Administrative Law Judge

Date: November 21,2013

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