PUBLIC DOCUMENT 

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 

PUBLIC VERSION REDACTED 

ECM BIOFILMS' OPPOSITION TO O.W.S. INC.'S MOTION TO QUASH AND/OR 

LIMIT SUBPOENA DUCES TECUM 

Respondent ECM BioFilms, Inc. ("ECM") hereby opposes non-party O.W.S. Inc.'s 

("OWS") Motion to Quash. In its subpoena ECM seeks infonnation within the scope of Rule 

3.31 ( c )(1 ). Even so, ECM twice revised the subpoena to narrow requests and reduce attendant 

production burdens. OWS has refused to supply any requested documents, despite the 

accommodations made. The OWS documents, including tests, letters, presentations, and review 

articles are relied upon by Complaint Counsel. The documents are relevant to ECM's defense. 

This Court has made clear that its Protective Order Governing Discovery Material, attached to 

the ECM subpoena, affords adequate protection for non-disclosure of confidential infonnation. 

See generally Dkt. No. 9358, ALJ Protective Order at ~6 (Oct. 22, 2013). Consistent with that 

Order, the Court should deny OWS's motion. 1 

1 See Complaint Counsel's "Limited Opposition to O.W.S.'s Motion to Quash," arguing 

that "O.W.S.' motion should be denied at least in part because O.W.S. is likely to have [relevant] 

infonnation ... " 

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PUBLIC DOCUMENT 

OWS is not entitled to an award of expenses because OWS has not met its burden of 

showing that the Subpoena imposes "unreasonable" costs. In the Matter of R.R. Donne/ley & 

Sons Co. et al., 1991 FTC LEXIS 248, at *3 (F.T.C. June 6, 1991). 

BACKGROUND 

Respondent's Subpoena to OWS: 

On February 13,2014, ECM served a valid subpoena duces tecum at the domestic 

address for OWS. See Exh. RX-A-1. OWS is a private company based in Gent, Belgium, that, 

among other operations, performs biodegradability and compostability tests of various articles. 

O.W.S. lists two points of contact: one in Belgium and one in the United States. See Exh. RX-B. 

On February 27,2014, one day before its production deadline, Ms. Haaker, counsel for OWS, 

contacted ECM by email and explained that the U.S. address on the OWS website was invalid, 

but that she would accept service on behalf of 0 WS if ECM issued a revised subpoena. See Exh. 

RX-C. On February 27, ECM counsel spoke with OWS counsel concerning the subpoena, 

service of same, and OWS's desired limitations to scope. See Exh. RX-N. Although ECM's 

requests of OWS were reasonably calculated to discover relevant information, and thus within 

Rule 3.31(c)(1), ECM agreed to limit the scope of the document requests; and on February 28, 

2014, served OWS with amended requests. See Exh. RX-A-2. RX-A-3. OWS counsel then 

contacted ECM on March 6th and requested more limits. See Exh. RX-D; RX-E. Without any 

basis in fact, OWS counsel accused ECM of subpoenaing OWS maliciously. See Exh. RX-E at 

4; RX-F. To avoid unnecessary motions practice, ECM responded immediately and offered to 

narrow the scope yet again. See Exh. RX-G. OWS counsel had claimed that Request No.5 

would require a search "literally encompassing 98% ofOWS's business." See Exh. RX-E at 6. 

2 

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PUBLIC DOCUMENT 

ECM greatly limited that request. See Exh. RX-G at 2. Ms. Haaker even acknowledged that 

conversations between counsel had been "productive." See Exh. RX-H. 

On March 11, ECM and OWS Counsel spoke again, and ECM agreed to further 

reductions in scope. See Exh. R.X-N. Refusing to consider those, and unwilling to produce any 

of the requested documents, OWS filed its Motion to Quash on March 12. See Dkt No. 9358, 

OWS Mot. to Quash (Mar. 12, 2014). ECM nevertheless unilaterally limited the scope of its 

requests that same day in a conscientious attempt to reduce further any production burden. See 

Exh. RX-1. ECM counsel acted in good faith, endeavoring to balance ECM's need for relevant 

documents with OWS's concerns. 

Importance of OWS to the Instant Action 

OWS testing, industry affiliations, financial interests, and bias are relevant to allegations 

contained in the Complaint and ECM's defenses. Complaint Counsel has relied repeatedly on 

OWS reports in depositions and plea4ings. 

Regarding testing, 

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PUBLIC DOCUMENT 

Regarding OWS bias, OWS is an industry player that issues certifications for the · 

Biodegradable Products Institute ("BPI"), a direct competitor ofECM that markets a competing 

technology, compostable products. See O.W.S. Mot. to Quash at 6-7. OWS is financially tied 

to, and supportive of, BPI, a proponent of "compostable" technologies and outspoken critic of 

plastics containing ECM's additive. Specifically, OWS certifies competing plastic products so 

manufacturers can obtain BPI's "logo" for their product. See Dkt. No 9358, R. Tillinger Aff. at 

,12 (Mar. 12, 2014); RX-E ("Often, all or part of the testing the customer submits for 

certification has been performed by O.W.S."). ·Further, 

OWS participates along with BPI on ASTM 

Subcommittee D20.96, the same committee that sets standards used in evaluations ofECM 

products. See O.W.S. Mot to Quash at 7. 

ARGUMENT 

A. THE INFORMATION ECM REQUESTS IS RELEVANT AND/OR 

CALCULATED TO LEAD TO RELEVANT INFORMATION 

Discovery is permitted if"reasonably expected to yield information relevant to the 

allegations in the complaint, to the proposed relief, or to the defenses of the respondent." 1.6 

CFR § 3.31(c)(l). OWS is required to produce documents "reasonably expected to be 'generally 

relevant to the issues raised by the pleadings."' In the Matter of Rambus, Inc., 2002 WL 

31868184, at *2 (F.T.C. Nov. 18, 2002) (quoting In re Kaiser Aluminum & Chem. Corp., 1976 

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FTC LEJCIS 68, at *4 (F.T.C. Nov. 12, 1976)). There is no precedential or rule limit that 

excludes confidential material. Confidential materials are not exempt, rather this Court has 

promulgated a confidentiality order, duly served upon OWS, that secures confidences from 

public disclosure. See ALJ Scheduling Orde ~ 7. 

The discovery rules, basic fairness, and due process support the conclusion that ECM 

should be afforded discovery of all information about possible bias or conflicts ofthose from 

whom evidence is offered against ECM. See, e.g., Exh.'s RX-L-1 ; RX-L-2; RX-L-3; RX-L-4; 

RX-L-5; R.X-L-6. To that end, OWS production is directly relevant. ECM asks for information 

relevant to, inter alia: (1) O.W.S. evaluation of plastic products containing the ECM additive; 

Facts already in 

ECM' s possession reveal those inquiries warranted, includi 

See Exh.'s R.X-M-1; R.X-M-2; R.X-K-1; 

R.X-Ll-5. 

B. THE SUBPOENA IS NOT OVERLY BURDENSOME 

OWS bears a "heavy" burden, recognized by this Court, to show that ECM's subpoena is 

unreasonable and should be denied. See In the Matter of Rambus, Inc., 2002 WL 31868184, at 

*3 (F.T.C. Nov. 18, 2002); see also ECM BioFilms, Dkt. 9358, March 13,2014 Order, at 2 

(citing In the Matter ofPolypore Int'l, Inc., 2008 WL 4947490 155, at *6 (F.T.C. Nov. 14, 

2008)). "The burden is no less for a non-party." Rambus Inc., 2002 WL 31868184 at *3 (citing 

5 

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PUBLIC DOCUMENT 

In re Flowers Indus., Inc., 1982 FTC LEXIS 96, at *14 (F.T.C. Mar. 19, 1982)). "Breadth alone 

is not sufficient justification to refuse enforcement of a subpoena." !d. 

OWS argues that it cannot "search customer records to discern whether another 

customer's material contained an ECM additive or related to ECM." See O.W.S. Mot. to Quash, 

at 4. OWS exaggerates its burden. SeeR. Tillinger Aff. ~ 6 (compliance would require 

contacting every OWS customer). Its argument would swallow the rule, see Rule 3.34; and, 

further, contrary to the argument, ECM sought only documents and materials obtainable through 

reasonable means, such as limited keyword searches. See Exh. RX-I. But, fundamentally, 

burden does not excuse non-production. See In the Matter of Phoebe Putney Health Sys., Inc. et 

al., 2013 WL 2444708, at *2 (F.T.C. May 28, 2013) ("[e]ven where a subpoenaed third party 

adequately demonstrates that compliance with a subpoena will impose a substantial degree 

of burden, inconvenience, and cost, that will not excuse [production that] appears generally 

relevant to the issues ... ") (citation omitted). 

Further, the inconvenience to OWS is generally "outweighed by the public interest in 

seeking the truth in every litigated case." US. v. Int'l Bus. Machs. Corp., 66 F.R.D. 186, 189 

(S.D.N.Y. 1974) (quoting Covery Oil Co. v. Cont'l Oil Co., 340 F.2d 993, 999 (lOth Cir. 1965)). 

ECM has a right to discover all evidence relevant to this action. See Apicella v. McNeil Labs., 

Inc., 66 F.R.D. 78, 82 (E.D.N.Y. 1975) (stating that "[t]he right of litigants to discover and 

present relevant evidence in civil litigation is given great weight in federal courts"). ECM has no 

choice but to participate in this litigation; and it has a right to obtain material calculated to lead to 

evidence necessary for its defense. Furthermore, the Court's Protective Order fully anticipates 

OWS's concerns and provides for them. Accordingly, this Court should compel OWS to comply 

with the Subpoena. 

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PUBLIC DOCUMENT 

Although under no obligation, ECM has repeatedly limited, and has even forgone, certain 

requests to ease OWS's burden. Each ofECM's narrowed requests is relevant and cannot be 

narrowed further without compromising the discovery of matters germane to this proceeding. 

Depending entirely on speculative assertions, OWS has offered no direct evidence required to 

meet its heavy burden to prove that production will in fact impose undue burden. See Kaiser 

Aluminum, 1976 FTC LEXIS 68 at *18 (stating that a general, unsupported claim ofburden is 

not persuasive). 

C. CONFIDENTIAL DOCUMENTS ARE NOT EXEMPT 

"The fact that information sought by a subpoena may be confidential does not excuse 

compliance." Rambus Inc., 2002 WL 31868184 at *4 (quoting Kaiser Aluminum, 1976 FTC 

LEXIS 68 at *9); see also F.T.C. v. Rockefeller, et al., 441 F. Supp. 234,242 (S.D.N.Y. 1977), 

aff'd 591 F.2d 182 (2d Cir. 1979) (holding that an objection to a subpoena on grounds that it 

seeks confidential information "poses no obstacle to enforcement"). Under FTC's Rules, "a 

showing of general relevance is sufficient to justify production of documents containing 

confidential information and no further showing of 'need' is necessary." !d. (quoting Kaiser 

Aluminum, 1976 FTC LEXIS 68 at *10-11; Flowers Indus., 1982 FTC LEXIS 96 at *8). 

"The_ protective order entered in this case ameliorates [OWS's] concerns." !d.; see also 

In the Matter of N. Tex. Specialty Physicians, 2004 WL 527340, at *3 (F.T.C. Jan. 30, 2004) 

(explaining that "[t]he provisions of the Protective Order adequately protect the confidential 

documents of third parties through a number of safeguards."). Further, OWS's status as "a third 

party does not diminish these principles, especially in light of the need ... to obtain the soughtafter information for [a] defense and 'the public interest in seeking the truth in every litigated 

case."' !d. (quoting Kaiser Aluminum, 1976 FTC LEXIS 68 at *15). In his Order, citing In re 

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PUBLIC DOCUMENT 

Lab. Corp. of Am., 2011 FTC LEXIS 22, at *5 (Feb. 17, 2011) his Honor recognized that, "[t]he 

fact ... discovery might result in the disclosure of sensitive competitive information is not a 

basis for denying such discovery." ALJ Order at 5. He concluded, "[e]ven ifECM's customer 

information is considered confidential ... , Respondent's contention that such information is 

therefore protected from discovery is without merit." Id. For any documents that do contain 

confidences, OWS may follow the Protective Order, label the documents as confidential, and be 

confident in the knowledge that his Honor strictly enforces that Order's provisions. 

D. OWS IS NOT ENTITLED TO COSTS 

OWS has the burden to demonstrate that ECM's subpoena is unreasonable. In the Matter 

of Intel Corp., 2010 WL 2332726, at *2 (F.T.C. May 28. 2010) (quotingF.TC. v. Dresser 

Indus., Inc., 1977 WL 1394, at *5 (D.D.C. 1977)). A subpoenaed party "can be required to bear 

reasonable costs of compliance with the subpoena." R.R. Donne/ley & Sons Co. et al., 1991 FTC 

LEXIS 248, at * 1-2. OWS must absorb the "reasonable expenses of compliance as a cost of 

doing business." Id. Reimbursement is proper only for "unreasonable" costs. Id. at *3 (citations 

omitted). OWS has supplied no evidence sufficient to prove unreasonable costs. 

The Respondent in Polypore Int 'I subpoenaed The Moore Company ("Moore"). See in 

the Matter of Polypore Int'l, 2009 WL 569708, at *1 (F.T.C. Feb. 3, 2009). Moore asserted 

arguments of burden comparable to those ofOWS. Moore argued that subpoena compliance 

would destroy its company. Id. Moore also asked the court for "reimbursement for all costs of 

compliance with Respondent's subpoena." Id. at *4. The court rejected the request, reciting that 

Moore had not demonstrated that estimated costs were unreasonable or unduly burdensome. Id. 

at *5. 

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PUBLIC DOCUMENT 

Here, as in Moore, OWS has failed to meet its burden. OWS offers nothing more than 

self-serving speculation that it has incurred expenses in opposing the subpoena. See Motion to 

Quash, at p. 5. Those fees appear themselves umeasonable given the nature and scope of the 

· subpoena, but even were they reasonable, they do not prove that umeasonable costs were 

incurred in supplying the requested documents, which is the probative factor. The alleged 

"costs" are not germane to production itself; they concern OWS's gratuitous decision to contest 

ECM's right to the information. Moreover, OWS's interaction with counsel suggests bad faith, 

having first indicated a willingness to produce documents requested if limited in scope, OWS 

then shifted and moved to quash the entire subpoena. 

CONCLUSION 

For the foregoing reasons, ECM respectfully requests that O.W.S's Motion to Quash be 

denied. 

DATED: March 21,2014 

9 

Respectfully submitted, 

Jonathan W. Emord (jdmord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

STATEMENT CONCERNING CONFIDENTIALITY 

ECM's Counsel hereby states that the content of the foregoing Opposition and its exhibits 

contain confidential information under this Court's Protective Order and, so, ECM hereby files 

this Opposition and its exhibits as "Confidential." 

10 

Respectfully submitted, 

Jonathan W. Emord 

EMORD & ASSOCIATES, P .C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
PUBLIC DOCUMENT 

STATEMENT CONCERNING RULE 3.45(E) 

Pursuant to Rule 3.45(e), ECM advises that certain Exhibits appended to its Opposition 

have been designated Confidential by third parties under the standing Protective Order in this 

action. Should the Commission intend to disclose in a fmal decision certain confidential exhibits 

in this Opposition, notice should be given to the following: 

• For Exhibits: RX-K-1; RX-L-2; RX-L-4 

Gary Hellinger, CEO 

Gary Plastic Packaging Corp. & Garyline div. 

1340 Viele Avenue, Bronx, NW 10474 

• For Exhibits: RX-M-1; RX-M-2 

Michael Zall, Esq., Counsel on behalf of BPI 

Two Yorkshire Drive 

Suffern, NY 10901 

Steve Mojo 

Biodegradable Products Institute 

331 West 57th Street, Suite 415 

New York, NY 10019 

• For Exhibit: RX-K-2 

John H. Masterson and John Griffm, Esq. 

Covidien, PLC 

15 Hampshire Street 

Mansfield, MA 02048 

11 

Respectfully submitted, 

J than W. Emord Ge ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on March 21, 2014, I caused a true and correct copy of the foregoing, 

ECM BIOFILMS' OPPOSITION TO O.W.S. INC.'S MOTION TO QUASH AND/OR 

LIMIT SUBPOENA DUCES TECUM AND FOR AN AWARD OF EXPENSES, to be 

served as follows: 

One hardcopy original and one courtesy copy to the Office of the Secretary through UPS 

overnight mail: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-1 13 

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-11 0 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

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

document that is available for review by the parties and adjudicator consistent with the 

Commission's Rules. 

DATED: March 21,2014 

12 

Jonathan W. Emord \ 

EMORD & ASSOCIATES, P.C. 

11808 Wolf Run Lane 
13 

PUBLIC DOCUMENT 

Clifton, VA 20124 

Telephone: 202-466-6937 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-A-1 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
VIA UPS 

Organic Waste Systems, Inc. 

7155 Five Mile Road 

Cincinnati, OH 45230 

February 13,2014 

PUBLIC DOCUMENT 

. A Professional Corporation 

WASHINGTON I VIRGINIA I PHOENIX 

11808 WOLF RUN LANE 

CLIFTON, VA 20124 

3210S. GILBERT ROAD 

Sum4 

CHANDLER, AZ 85286 

(602) 388-8899 1 FAX (602) 393-4361 

1050 SEVENTEENTH STREET, N. W. 

SUITE600 

WASHINGTON, D.C. 20036 

(202) 466-69371 FAX (202) 466-6938 

Lou F. Caputo, Esq. 

602.388.8901 

lcaputo@emord.com 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Sir or Madam: 

Pursuant to the Federal Trade Commission's Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.'s subpoena duces tecum to O.W.S. This subpoena requests the 

production of documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter. 

Please provide all requested documents no later than February 28, 2014. We welcome 

you to contact us with questions. 

EMORD& AsSOCIATES, P.C. 

WASHINGTON, D.C.I VIRGINIA I ARIZONA 

Sincerely, 

~w~ Peter A. Arhangelsky 

Lou F. Caputo 

(202) 466-6937/F AX (202) 466-6938 

Resp. Opp. to O.W.S.~1Eit0~.~ 

Exh. RX-A-1 
PUBLIC DOCUMENT 

·SUBPOENA DUCES TECUM 

Provided by tile ~retary of the Fed~l Trade Commission, and 

.Issued Pursuant to Commission Rule 3.34(b); 16 Cr.R. § 3.34(b)(2Q10) 

1. TO. 

General Counsel and/or other Executive for 

Organic Waste Systems 

7155 Five Mile Road 

Cincinnati, OH 45230 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

Tbis $Ubpoena JeQUirea you t9 produoe and permit inspection and~ of designated books, ~ts (as defined in 

R.,. 3.34(b)), ot: ~things, at. the date and titne $peCified In Item 5, and at the~ of Counsel ~ in Item 9, in . 

the.p~ c:fesc.thd rn Item e. · · U'lACEoFPRoouctloN . 4. MATERIALWIU.BEPRODUCEO.TO 

Emord & Associates, P.C. Peter Arhangelsky 

3210 S. Gilbert Road, Suite 4 1-s~. ~DA~:re~ANO~~n~M~E~OF~P--RODUCTION- .. ----~-------

Chandler, AZ 85286. · February 28,2014,5:00 PM EST 

· · 8. SUBJECT OF PROCEEOING . . 

· In the matter of ECM BioFilms, Inc., D.ocket No. 9358 

7~ MA'1'ERIAI.: TOSEPROI;)UCED 

See Attached Schedule A for description of all doGUments and materials. . . . . 

9. COUNSEL AND PARTY ISSUING SU8fOe!A 

Chi~f Administrative Law Judge Jonathan W. Emard, Peter Arhangefsky, Lou 

D. M !chae! Chappell · Caputo 

Federal' Trade. Commission . Emord & Associates, P .C. for Respondent 

· W8shingtoo,. D.C. 2oSso . · ECM BioFifms, Inc. 

~~INSTRUCTIONS· 

· . APPEARANce .. · 

The deliYery of~~ tO you by anY.me_thod· ~by~~'sRulesofPradlce Is 

· : ~ ser)tlCe anca may idjec:t}OU ~a penalty , 

lmpoiGct'by l8w for faaure to Comply. 

MOTION Tb. I,JftiiT OR QUASH 

The Commi$Sion'sRures Of P~ reciWr8 that My motiOn to· limit orqu;ash this-subpoena. must COI'nPfy wllh Cbn.nissi~ Rule 3.34(c). 1~ c.F R. §:3.34(c), • . In 

partiCular must 'be filed wltt!ln -the earfier of 10 days' after . &erv~oe the.1ime ror · ·iance. Th8 ~lri81 anc~ 1en · 

~:thepetHkmm~~ befoie1h8 · · . . . AdmlnlmltiVe law Judg8 81'1\i wtlh .lhe.seaetary of 1he 

· Commission. a~ by an ~vitof aemce of 

the doctlr'nent upon couns8J listed lri Item 9, .x~ upOil au · other~ ~ibecf~ the ft*.s ~Prac:tice .. · 

FtC Form 7o.E' (nW. ·1197) · 

. TRAVEL EXPENS.ES · The CommisSion's Rules of Practice requile. that.fees and · miJeai9e be paid by the party that • l8sted.. . . . 

You~ pre&el)t.yaUr daimto ~.J:"'~~ · payment. If you are~ ortemporadly,livin9 · . · 

somewhere other than the •• on .this subpQena and it 

~leqUire ~ travel for voi.! ~ aPPear.: ygu ~get . priorapj)IOV8J fi'oin c:ounsef.Hst8d.in ~ 9 . . 

A copy.ofthe Commlssion'$·Rules of Practice Is~ 

on&ne at bl!D M~IfTCRLI!uotpr;¢ti"A ~ Copi8S are· available upon request. ·· · · · · · · 

· ThiS Subpoena do,s not 19e1W..~ by OMBIRider 

the Pap8Mock Reduetlon h:t of. 1960. . . 

·Resp. bpp. to O.W.S. Mot. to Quash 

Exh. R.X-A-1 
PUBLIC DOCUMENT 

SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

ORGANIC WASTE SYSTEMS, INC. (UNITED STATES HQ) 

INSTRUCTIONS 

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

1 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3 .31 ( c )(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

J. The Federal Trade Commission's Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assettions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ~4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item's type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

2 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. R.X-A-1 
PUBLIC DOCUMENT 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the term "documents" 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence I, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents concerning2 ECM BioFilms, Inc. 3 

2. All correspondence between O.W.S. and any employee, representative, or 

distributor ofECM BioFilms, Inc. 

3. All documents sent or received by OWS employees making reference to ECM 

BioFilms, Robert Sinclair, or ECM BioFilms Master Batch Pellets 

I The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The term "concerning" is intended, used, and defined in its broadest sense allowable 

under lhe FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining, or about the documents 

subject to any and all individual requests in this subpoena. 

3 ECM BioFilms Inc. is an American corporation with its principal place of business at 

Victoria Place- Suite 225, 100 South Park Place, Painesville, Ohio 44077, United States. 

3 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

4. All documents concerning Gary Plastic Packaging Corporation4 (GPPC) and/or 

any test or report (including any and all notes and raw data) performed or written for GPPC, 

including, but not limited to, "Study GLH-2: Review of Several Documents, Reports and 

Statements on Biodegradation ofECM Masterbatch Pellets." 

5. All documents concerning any test or report (including any and all notes and raw 

data) performed or written about a product or substance containing any product ofECM 

BioFilms, Inc., including "ECM Masterbatch Pellets." 

6. All documents concerning any test or report (including any and all notes and raw 

data) performed or written about products or substances claims to be biodegradable. 

7. All correspondence between O.W.S. and any employee or representative or 

officer of GPPC. 

8. All correspondence between O.W.S. and any member, employee, representative, 

or officer of the United States Federal Trade Commission. 

9. All documents concerning the education, training, and experience ofMr. Bruno 

de Wilde. 

10. A list of all tests and reports authored by Mr. de Wilde. 

11. All employee evaluations ofMr. de Wilde. 

12. All documents written or authored by Mr. de Wilde concerning biodegradable 

plastics. 

13. All documents concerning the education, training, and experience ofMr. Richard 

Tillinger. 

14. All employee evaluations ofMr. Tillinger. 

4 Gary Plastic Packaging is an American company located at 1340 Viele A venue, Bronx, 

NY 10474, United States. 

4 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

15. A list of all tests and reports authored by Mr. Tillinger. 

16. All documents written or authored by Mr. Tillinger concerning biodegradable 

plastics. 

17. All documents concerning or related to any version of the American Society of 

Testing and Materials' ("ASTM") testing methods D5511 and D5526. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents5

, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees ofO.W.S who have knowledge of such 

matters, can authenticate the documents and materials produced, and who can 

testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

5 "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested" section. 

5 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 

----------------
PUBLIC DOCUMENT 

A declaration that states: 

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date]. 

[Signature of party executing the declaration] 

Respectfully submitted, 

Is/ Jonathan W. Emord 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202-466-6937 

Fx: 202-466-693 8 

Em: jemord@.emord.com 

Counsel to ECM BioFilms, Inc. 

6 

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Exh. RX-A-1 
PUBLIC DOCUMENT 

UNITED STATES OF A!"'ERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMJNlSTRATlVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states.: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Admi.I.llstrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3 l(d). Pursuant to Commission· Rule 3.3l(d), the protective order set forth.in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

Date: October 22,2013 

D. Michiercleii 

Chief Administrative Law Judge 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defmed. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission'' shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that c.ounsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 ofthis Order. 

2 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm( s ), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the infoim.ation in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereund~r. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability ofRule 4.1l(e) of the Commission's 

Rules of Practice, 16 CFR 4.ll(e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

ofthis proceeding. 

4 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-1 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-A-2 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
VIA EMAIL 

Christine Haaker, Counsel to 

O.W.S, Inc. 

February 28,2014 

(e): Christine.Haaker@.thompsonhine.com 

PUBLIC DOCUMENT 

A Professional Corporation 

WASHINGTON I VIRGINIA I PHOENIX 

11808 WOLF RUN LANE 

"CLIFTON, VA 20124 

3210 S. GILBERT ROAD 

SUITE 4 

CHANDLER, AZ 85286 

(602) 388-8899 1 FAX (602) 393-4361 

1050 SEVENTEENTH STREET, N.W. 

SurrE600 

WASHINGTON, D.C. 20036 

(202) 466-69371FAX (202) 466-6938 

Lou F. Caputo, Esq. 

602.388.8901 

Icaputo@emord.com 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Ms. Haaker: 

We understand that you represent O.W.S., Inc. and have agreed to accept service on 

behalf of O.W.S., Inc. Pursuant to the Federal Trade Commission's Rules of Practice, please 

find enclosed Respondent ECM BioFilms, Inc.'s amended subpoena duces tecum to O.W.S. 

This subpoena requests the production of documents and other materials. Included with the 

subpoena is Schedule A, which describes the instructions and specific requests of Respondent 

and a copy of the Protective Order issued in this matter. 

Please provide all requested documents no later than March 14, 2014. We welcome you 

to contact us with questions. 

EMORD & AssOCIATES, P.C. 

w ASHINGTON, D.C. I VIRGINIA I ARlZONA 

Sincerely, 

Peter A. Arhangelsky 

Lou F. Caputo 

(20~ 6-69371FAX (202) 466-6938 

Resp. Opp. to O.W ~tE!f0~.tiaah 

Exh. RX-A-2 
PUBLIC DOCUMENT 

SUBPOENA DUCES TECUM 

Provided by tlie Secretary of the Federal Trade Commission, and . 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

O.W.S., .Inc . 

. C/O Counsel, Ms. Christine Haaker 

2.FROM 

UNITED. STATES .OF AMERICA 

FEDERAL TRADE COMMISSION 

This. subpoena requires you to produce and permit inspection and oopying of. designated books, documents (as defined in 

Rul& 3.34(b)), 01: tangible things, at the dat8 and time· Specified in Item 5, and at the ~ of CounseiNsted in Item 9, in the~ described in Item 8. · · · · 

3. PLACE OF PRoouc11oN 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

· 8. SUBJECT OF PROCEEDING 

<l MATERIAl WILL BE PRODUCED TO 

Peter Arhangelsky 

6. DAlEANOllMEOFP~ 

. ·March 14, 2014, 5:00 PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

. 7. MATERIAL TOBEPROQUCED' 

See Attached Schedule A for description of all documents and materials. 

a. ADM~ 1M: LAW JUDGE 

Chief Administrative Law Judge 

D. Michael Chappell 

Federal Trade Commission 

Washington, o:c. 20580 

. DATE SJGNJ;t) 

2/28/14 

A~E 

The deiNery of this subpoena to ,ou by any method 

.. . presc:riled by.the Commission's Rules of~ !s • legal ~ .nd may ~you_, .• penalty 

irnpoeed by law for failure 1o.c;amply. 

·NOliON J() UMIT QR QUASH . 

The Cominiaiof1•s Rules of PraCtic8 ntqUir8 hat any 

motion to limit Or~ subpoena rywst ~ wilh Commisalon Rule 3.34(c), 16 C.F.R. § a34(c). and in 

paJ1icular mt:ist be filed within lhe e8lfler of 10 days aftJ8r · · ser.vkie.ortl1e~ ror c;omp~ance. The original and ten · 

copie6rof the petition must be fled befo~Jt the 

~taw~ and with. the secretary of the 

CommlssiOn;.8ClCIOmp8nied by an affidavit of secvloe-of 

the document .upon counsetbled 1n Item 9, and upon au . other partie& p18SC1ibed by the Rules of Prac:tiQe. · 

FTC Form 70-E (IW. 1197) 

9. C0UNSB. AlliO PARTY ISSUING SUB~ 

Jonathan W. Emord, Peter Arhangelsky, Lou 

. Caputo · 

Emord & Associates, P.C. for Respondent 

ECM BioFilms, Inc. 

TRAVEL.EXPEHS£S . 

The Cotnmis&ion'& RUles of Practice n!qUire that fees and 

mileage be paid~ 1he party ft\at .-qu~ ~ · . 

You should Pf')Sellt your claim to counsellist8d in Item 9 fOr 

payinent. If you are permanently or temp:~rerily living · 

somewhere other than the addtess on this subpoena ~ it 

would require exoes&iv.e travel for you to appear, Y'?U must get 

priof apProval~~~ in 1.tem 9. · 

·A copy of !he Colnmi&sioR's Rules ot Practioe is avail8ble 

online at hUp:/Jbjtf¥JETCRuJmspffrasg, Paper GOpie$ _.. 

.. available upon request. 

This subpoena~ not leql.liteJippc:oval by OMB under· 

lhe Papefwork Reduction kt of1~. 

Resp. Opp. to O.W.S. Mot. to Quash 

. Exh. RX-A-2 
PUBLIC DOCUMENT 

SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

O.W.S., INC. 

INSTRUCTIONS 

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

1 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-A-2 
PUBLIC DOCUMENT 

I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3 .31 ( c )(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

J. The Federal Trade Commission's Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 1 0 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) ofthis section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ~4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. lf any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item's type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

2 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the term "documents" 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence 1

, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents and correspondence conceming2 ECM BioFilms, Inc., 3 Robert 

Sinclair, and/or ECM BioFilms Master BatchPellets 

2. All documents and correspondence concerning any test or report (including any 

and all notes and raw data) performed or written for Gary Plastic Packaging Corporation4 

1 The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The term "conceflling" is intended, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining, or about the documents 

subject to any and all individual requests in this subpoena. 

3 ECM BioFilms Inc. is an American corporation with its principal place of business at 

Victoria Place- Suite 225, 100 South Park Place, Painesville, Ohio 44077, United States. 

4 Gary Plastic Packaging is an American company located at 1340 Viele A venue, Bronx, 

NY 10474, United States. 

3 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

(GPPC) including, but not limited to, "Study GLH-2: Review of Several Documents, Reports 

and Statements on Biodegradation ofECM MasterBatch Pellets." 

3. All correspondence between O.W.S. and any member, employee, representative, 

or officer of the United States Federal Trade Commission. 

4. All correspondence between O.W.S. and any member, employee, and/or 

representative of the Biodegradable Products Institute ("BPI"). 

5. All documents concerning any test or report (including any and all notes and raw 

data) performed or written related to the biodegradability of plastic products under ASTM 

standards D5511, D5526, and D5338 or equivalent standard. 

6. All documents concerning the education, training, experience, and employee 

evaluations of Mr. Bruno de Wilde. 

7. All documents written or authored by Mr. de Wilde concerning plastic products 

claiming to be biodegradable with the use of an additive product, including, but not limited to 

ECM's additive (MasterBatch Pellets). 

8. All documents concerning the education, training, experience, and employee 

evaluations ofMr. Richard Tillinger. 

9. All documents, including tests and reports, written or authored by Mr. Tillinger 

concerning plastic products claiming to be biodegradable with the use of an additive product, 

including, but not limited to ECM's additive (MasterBatch Pellets). 

10. All documents and correspondence concerning any amendments, vote(s), and/or 

"negatives" related to ASTM standards D5511, D5526, and D5338. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

4 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents5

, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of O.W.S. who have knowledge of such 

matters, can authenticate the documents and materials produced, and who can 

testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states: 

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date]. 

[Signature of party executing the declaration] 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

5 "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested" section. 

5 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-A-2 
Ph: 202-466-6937 

Fx: 202-466-6938 

PUBLIC DOCUMENT 

Ern: jemord(a)ernord.com 

Counsel to ECM BioFilrns, Inc. 

6 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

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. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states.: "In order to protect the parties and third parties 

ag!rinst improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3l(d). Pursuant to Commission Rule 3.31(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

Dare:· October 22, 2013 

Chief Administrative Law Judge 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 

---------------·------------------------------
PUBLIC DOCUMENT 

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, '"confidential material'' shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph I of this Order. 

2 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm( s ), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(±) and 21 ofthe Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability ofRule 4.ll(e) of the Commission's 

Rules of Practice, 16 CFR 4.ll(e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions ofRule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

4 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-2 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-A-3 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-3 
From: 

To: 

Cc: 

Subject: 

Date: 

Attachments: 

Hi Christine, 

Lou Caputo 

"Christjne.Haaker@thomosonhine.com" 

Peter Arhanqelsky 

O.W.S. Subpoena Duces Tecum 

Friday, February 28, 2014 5:15:00 PM 

Subpoena CO.W.S.) Camended).pdf 

PUBLIC DOCUMENT 

As we discussed, please find attached our amended subpoena to O.W.S., Inc. I will be out of the 

office all of next week, however, I will be periodically checking my email. Please let me know of any 

questions concerning the subpoena and I will be happy to discuss. 

Thank you very much, 

Lou 

Lou Caputo 1 EMORD & AssociATEs, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 

388-8901 1 Facsimile: (602) 393-4361 I www.emord com 

N.QJJ.QE.: 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. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-A-3 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-B 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-B 
HOME I NEWS & EVENTS I CAREERS I CONTACT I 

OWS N.V. 

(Headquarters) 

Dok Noord 5 

B-9000 Gent 

Belgium 

Tel: +32 (0)9 233 02 04 

Fax: +32 (0)9 233 28 25 

VAT: BE0433.270.195 

mail@ows be 

Opening hours: 

Mo-fr: 08h30-12h30 & 13h15-17h30 

(GMT+1 I GMT+2 in summer) 

OWS Inc. 

Ms. Norma McDonald 

North America Sales Manager 

7155 Five Mile Road 

Cincinnati, OH 45230 

USA 

Tel: +1 513 535 6760 

Fax: +1 513 233 3395 

norma mcdonald@ows be 

Parking & directions 

OWS is easily accessible by public 

transport. We are located at about 1.3 

kilometers from the 'Dampoort' train station 

in Gent. 

More detailed directions can be found 

below. 

+ Parkjng & entrance 

+ Qjrectjons 

Contact us 

Last name * 

Flrstname • 

Email* 

Company • 

Country • 

Subject • 

Message • 

PUBLIC DOCUMENT 

SEARCH e Nl FR Ell DE ES 

1 

--~----------·· ···· ·· ~ 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-B 
PUBLIC DOCUMENT 

0 Fields with • are required 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-B 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-C 

Resp. Opp. to O.W.S. Mot. to Quash 

Ex.h. RX-C 
PUBLIC DOCUMENT 

THOMPSON ATI..ANTA CLEVElAND DAYTON WASHINCTON, D.C. ---1-II~E---------------C-IN_C_I_NN _I _________ C_O_W_M_B_U_S ________ N_EW--YO- R-K------------

February 27, 2014 

Via Electronic Mail 

Jonathan W. Emord 

Peter A. Arhangelski 

Lou F. Caputo 

3210 S. Silbert Rd., Suite 4 

Chandler, AZ 85286 

RE: In the Matter ofECM BioFilms, Inc., Federal Trade Commission Docket No. 9358 

Mr. Emord: 

Please be advised that our firm represents O.W.S. Inc. ("O.W.S."). A subpoena addressed to Organic 

Waste Systems, Inc. was delivered to 7155 Five Mile Rd., Cincinnati, OH 45230 (the ''Subpoena") in 

regard to the above-captioned case. A copy of that Subpoena is attached for your reference. 

Service of the Subpoena is ineffective. No entity named Organic Waste Systems, Inc. exists at the 

address to which the Subpoena was delivered. Organic Waste Systems, Inc., is a recently formed 

(October 31, 2013) corporation that exists under the laws of California. 

In the event that you intended to serve the Subpoena to O.W.S., and ultimately decide to serve a subpoena 

on O.W.S, our firm will accept service on behalf ofO.W.S. and work with you in regard to any necessary 

production. However, if you intend to serve a subpoena on O.W.S. similar to the Subpoena, to streamline 

the process and avoid potential issues in advance, we ask that you reconsider the breadth of the requests. 

As written, the Subpoena requests in several instances information that is completely unrelated to ECM 

BioFilms, Inc., as well as information that in all likelihood is confidential and proprietary to the recipient 

as well as the recipient's customers, which may be subject to confidentiality and non-disclosure 

agreements. 

Please feel free to contact me if you have any questions or if you would like to discuss this matter. 

Sincerely, 

Christine Haaker 

Christine.Haaker@TbompsonHine.com 937.443.6635 (facsimile) 937.443.6822 (telephone) 770500.2 

THOMPSON HIN E l LP 

ATTORNEYS AT l.Aw 

Austin Landing I 

10050 Innovation Drive 

Suire 400 

Dayton, Ohio 45342-4934 

- - - ------·--·-··-·--··---·--- ---·-----------

W\VW.ThompsonHine.com 

Phone: 937.443.6600 

Fa.'<: 937.443.6635 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-C 
THOMPSON PUBLIC DOCUMENT 

HlNE __________________________ __ 

Enclosures 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-C 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-D 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-D 
From: 

To: 

Cc: 

Subject: 

Date: 

Importance: 

Lou, 

Haaker Christine 

Lou Caputo 

Peter Arhanqelsky 

RE: O.W.S. Subpoena Duces Tecum 

Thursday, March 06, 2014 9:49:S9 AM 

High 

PUBLIC DOCUMENT 

We have major issues with the Subpoena. In many ways, I am hoping inadvertently, you have drastically gone well 

beyond even the scope of the prior subpoena. For example, No. 5 would involve hundreds of customers and 

thousands of unrelated products, subject to confidentiality agreements. I have to tell you, this Subpoena seems to 

telegraph a clear intent to harass and tOitiously interfere with the business of my client. I understand you are out of 

the office, but we need to discuss. When would be a good time? 

Best, 

Christine 

From: Lou caputo [mailto:Lcaputo@emord.com] 

Sent: Friday, February 28, 2014 7:15PM 

To: Haaker, Christine 

Cc: Peter Arhangelsky 

Subject: O.W.S. Subpoena Duces Tecum 

Hi Christine, 

As we discussed, please find attached our amended subpoena to O.W.S., Inc. I will be out of the 

office all of next week, however, I will be periodically checking my email. Please let me know of any 

questions concerning the subpoena and I will be happy to discuss. 

Thank you very much, 

Lou 

Lou Caputo 1 EMORD & AssociATES, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 

388-8901 I Facsimile: (602) 393-4361 1 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. 

-------------------- ----

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-D 

--------------------------------·----------
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-E 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON ATlANTA ClEVElAND DAYTON WASHINGTON,D.C. ---I-II~E~-------------C-IN_C_IN-N-~-~---------c-o_w_M-BU_S ________ N_E_W_Y_OR-K--------~--

March 7, 2014 

Via Electronic Mail 

Lou F. Caputo 

3210 S. Silbert Rd., Suite 4 

Chandler, AZ 85286 

RE: In the Matter of ECM BioFilms, Inc., Federal Trade Commission Docket No. 9358 

(the "Proceeding") 

Dear Lou: 

As you know, I contacted you on February 27,2014 in regard to a subpoena purportedly served 

on "Organic Waste Systems, Inc." and that was improperly delivered to 7155 Five Mile Rd., 

Cincinnati, OH 45230. I offered that if you intended to serve a subpoena on my client, O.W.S. 

Inc. ("O.W.S."), I would accept service. I asked that if you did intend to serve a similar 

subpoena on O.W.S. that you consider narrowing the Requests. Following your receipt of the 

email, you telephoned me and we discussed why several of the subpoena Requests were 

objectionable. As indicated, my client has no interest in the Proceeding and in all ways intends 

to be cooperative to the extent Requests are reasonable. 

Last Friday evening, February 28, 2014, you sent a revised subpoena to me for O.W.S. via 

electronic mail (the "Subpoena"). While I appreciate your cooperation and willingness to 

discuss the Requests, and that you did make some revisions, you have also expanded the 

Subpoena's scope, making it more broad in many respects. I hope that we can cooperatively 

work to narrow the Subpoena Requests and will do my best to elaborate reasons therefore herein 

in the hope that we can avoid motion practice. 

General Information 

O.W.S. is an independent testing company that serves hundreds of clients and processes 

thousands oftests of materials and products. The vast majority ofO.W.S.'s clients require strict 

confidentiality. O.W.S. does not own the testing information, it is the information of the 

customers. Many of these customers are competitors of your client. 

The market for testing the biodegradation of plastic materials and products is very small. O.W.S. 

has a strong reputation in this market and is trusted by its customers. This strong reputation and 

Christine.Haaker@ThompsonHine.com 937.443.6635 (facsimile) 937.443.6822 (telephone) 

THOMPSON HlNE llP 

ATTORNEYS Ar lAw 

------------------------------------· 

Austin Landing I 

10050 Innovatiuu Drive 

Suite 400 

Dayton, Ohio 45342-4934 

www.ThornpsonHine.com 

Phone: 937.443.6600 

Fa.": 937.443.6635 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-}ilNE~~------------------------------------

March 7, 2014 

Page -2-

the trust placed in O.W.S. by its customers are based on and exist, in large part, because of 

O.W.S.'s strict adherence to the protection of its customers' confidential and proprietary 

business information and data. O.W.S. actively markets its services to customers and potential 

customers by assuring them that the customer owns the data and that their data is protected. In 

fact, O.W.S. has exercised this policy on multiple occasions to protect your client's own data. If 

O.W.S. were compelled to reveal customer information against the customer's will, even under 

the protective order, that disclosure of customers' proprietary and confidential information 

would significantly damage the reputation ofO.W.S. in the marketplace, and would cause 

irreparable harm to and possibly destroy its business with North American customers. This 

cannot be emphasized strongly enough. O.W.S.'s business critically depends on the trust its 

customers place in O.W.S., and that trust will be broken by revealing their information. We ask 

that you consider this information as you review the objections and concerns set forth below. 

Instructions 

We have the following concerns with your "Instructions": 

• C: This Instruction requires that if a document contains a portion that is responsive and a portion 

that is not, the entire document should nonetheless be wholly produced without redaction. We 

could not agree to this. For example, if an email discussed ECM BioFilms, Inc. ("ECM") in one 

paragraph but contained five other paragraphs that had absolutely nothing to do with ECM, we 

would redact the other non-responsive paragraphs, indicating to you such redactions. Will you 

agree to this procedure? 

• D and F: These Instructions require the correlation of documents to each Request. We will 

attempt to comply, however, to the extent documents correlate to repeated Requests, we believe 

that this Instruction would be overly burdensome to a third party. Will you agree with our 

approach? 

• E: This Instruction expressly seeks production of documents to and from attorneys. A Request 

specifically directed to seeking attorney-client privileged documents is in and of itself 

objectionable at the outset and seems directed to invading privilege. Unless a document is 

directly responsive to a Request, is not otherwise objectionable and is being withheld solely for 

privilege, we will not log it on a privilege log. Pursuant to 16 CFR 3.31 ( c )(2), we will not review 

nor log any documents generated in the process of the prior subpoena or this Subpoena. Will you 

agree with our approach? 

• H: This Instruction seeks to deem any objection not raised in O.W.S.'s initial response-this 

letter, for example-waived. O.W.S. hereby expressly reserves the right to make any and all 

timely objections in compliance with the Commission's Rules. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 

~~- --~-----~~-------~. -------------·--~~--~------~---------------~-----------------~----------
PUBLIC DOCUMENT 

THOMPSON 

-1-IINE~~------------------------------------

March 7, 2014 

Page -3-

• L: This Instruction seeks to require what are essentially answers to interrogatories in regard to 

documents withheld for privilege. O.W.S. will comply with the requirements ofthe 

Commission's Rules, no more. 

The Requests 

1. All documents and correspondence concerning ECM BioFilms, Inc., Robert 

Sinclair, and/or ECM BioFilms Master Batch Pellets. 

This Request is very broad and unduly burdensome to even search for. Further, the Request does 

not appear to be limited to the subject matter of the Proceeding, which I understand to relate to 

the question of whether ECM additives and ECM plastics advertised as biodegradable are in fact 

biodegradable. To this end, you should know that O.W.S. has not performed tests for ECM since 

approximately 2000. While a product submitted by an O.W.S. customer for testing could contain 

an ECM additive, O.W.S. may or may not be told this by the customer. O.W.S. conducts 

thousands of tests for hundreds of customers and has no way to reasonably search customer 

records to pull out information regarding whether a customer's product being tested contained an 

ECM additive or related in some way to ECM. 

This Request may also involve confidential and proprietary information ofO.W.S. and of 

O.W.S. customers, many of which are competitors of your client, which would have no bearing 

on the Proceeding. O.W.S. would also, in all likelihood, owe strict contractual duties of nondisclosure and confidentiality to such customers, placing O.W.S. in an untenable position of 

being in breach of contract and violating the trust and confidence of its clients. Further, the 

testing information is the customers' property, not O.W.S.'s to disclose. Disclosure could only 

serve to harm O.W.S. and not serve to support any claim or defense in the Proceeding. 

Moreover, some of our customers are attorneys who hire O.W.S. for privileged and confidential 

testing, subject to the work product doctrine. O.W.S. has no right or ability to violate its 

agreement with such customers, whose testing may relate to competitors of your client. Even the 

disclosure of a mention ofECM by such customers would violate the competitive rights of those 

customers. 

O.W.S. has no problem producing documents in which ECM, Robert Sinclair, and/or ECM 

BioFilms Master Batch Pellets are discussed in non-confidential/protected communications that 

are not customer specific, to the extent they can be readily located. O.W.S. cannot produce 

documents in breach of customer contracts and confidences, or in violation of privileges not held 

by O.W .S., but by the customers. Nor can 0. W .S. feasibly contact every such customer to either 

obtain permission to produce under the Protective Order or to allow such customers to intervene. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-}-liNE·~~-----------------------------------

March 7, 2014 

Page -4-

To try to even go through all customer documents to determine whether they could be responsive 

at the outset is an insurmountable task. 

You should know that O.W.S. has received documents that suggest that ECM or someone 

advocating for ECM appears to have taken old O.W.S. test reports for ECM and altered them to 

change the conclusions. We will produce these documents assuming this Request is not 

otherwise limited or deleted. 

Will you agree to limit this Request to exclude documents concerning O.W.S. customers other 

than ECM and to limit this Request to documents concerning ECM, Mr. Sinclair and or the 

Master Batch Pellets that are non-customer specific (not confidential) to the extent readily 

located? 

2. All documents and correspondence concerning any test or report (including any and 

all notes and raw data) performed or written for Gary Plastic Packaging 

Corporation (GPPC) including, but not limited to, "Study GLH-2: Review of 

Several Documents, Reports and Statements on Biodegradation of ECM 

MasterBatch Pellets." 

This Request also does not appear to be limited to the subject matter of the Proceeding. Because 

this Request may also involve confidential and proprietary information of GPPC, we have 

contacted GPPC and understand that GPPC has already produced this information to you in this 

Proceeding. Therefore, this Request appears to also be repetitive of information you have 

already directly obtained. O.W.S. would not have anything more than GPPC on this issue. 

Will you agree to withdraw this Request? 

3. All correspondence between O.W.S. and any member, employee, representative, or 

officer of the United States Federal Trade Commission. 

This Request also does not appear to be limited to the subject matter of the Proceeding. Because 

this Request may also involve confidential and proprietary information of GPPC, we have 

contacted GPPC and understand that GPPC has already produced this information to you in this 

Proceeding. Therefore, this Request appears to also be repetitive of information you have 

already directly obtained. O.W.S. would not have anything more than GPPC on this issue. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-filNE·~~------------------------------------

March 7, 2014 

Page -5-

Will you agree to withdraw this Request? 

4. All correspondence between O.W.S. and any member, employee, and/or 

representative of the Biodegradable Products Institute ("BPI"). 

This is a new Request that was not even alluded to in the prior subpoena. 

This Request is very broad and unduly burdensome to even search for. Further, the Request does 

not appear to be limited to the subject matter of the Proceeding. This Request may also involve 

confidential and proprietary information ofO.W.S. and of customers, many of which are 

competitors of your client, which would have no bearing on the Proceeding. Further, the testing 

information is the customers' property, not O.W.S.'s to disclose. O.W.S. would also, in all 

likelihood, owe strict contractual duties of non-disclosure and confidentiality to such customers, 

placing O.W.S. in an untenable position of being in breach of contract and violating the trust and 

confidence of its clients. This could only serve to harm O.W.S. and not serve to support any 

claim or defense in the Proceeding. Moreover, some O.W.S. customers are attorneys who hire 

O.W.S. for privileged and confidential testing, subject to the work product doctrine. O.W.S. has 

no right or ability to violate its agreement with such customers, whose testing may relate to 

competitors of your client. 

Some background is in order. O.W.S. deals with the BPI on three separate levels. On one level, 

O.W.S. deals with the BPI on behalf of 0. W.S. customers in regard to such customers' Request 

for certification oftheir own products. The BPI administers a certification mark (logo) for 

compostable products. Many O.W.S. customers seek this certification. Often, all or part of the 

testing the customer submits for certification has been performed by O.W.S. Communications 

with the BPI on behalf of O.W.S. customers involve confidential and proprietary information 

belonging to the customers, many of whom are direct competitors of your client. This 

confidential and proprietary information can include, but is not limited to, material or product 

formulations, product construction, manufacturing techniques, testing results, and marketing 

plans. These discussions relate to the customers' own products and are unrelated to ECM and 

unrelated to the Proceeding in any way. 

On a second level, O.W.S. participates, along with one representative of the BPI, on 

subcommittee D20.96 of the American Society for Testing and Materials ("ASTM"). Mr. 

Sinclair also participates on this subcommittee and is fully aware of these activities and the 

business of the subcommittee, and has full access to communications related thereto. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-}1INE~~------------------------------------

March 7, 2014 

Page -6-

Finally, on a third level, some O.W.S. customers are members of the BPI. The BPI is, according 

to their website (www.bpiworld.org), a not-for-profit association of individuals and groups from 

government, industry and academia. Their stated purpose is to "educate manufacturers, 

legislators and consumers about the importance of scientifically based standards for compostable 

materials which biodegrade in large composting facilities." The BPI's website currently lists 147 

members. O.W.S is not a member of the BPI, but, as stated, some ofO.W.S.'s customers are 

members. Thousands of correspondence documents exist between O.W.S. and these customers 

in the normal course ofO.W.S.'s business with such customers in their own commercial 

capacities, not in their capacity as members of BPI. This correspondence has nothing 

whatsoever to do with your client or the Proceeding. The membership of those customers in the 

BPI is merely coincidental to the existence of the documents. These customers are competitors 

of ECM and the documents contain confidential or proprietary information including, but not be 

limited to, material or products formulations, product construction, manufacturing techniques, 

testing results, and marketing plans. 

O.W.S. will not search for or produce documents merely because the source or recipient of the 

document may be a member of the BPI. O.W.S., however, will search for and produce 

responsive correspondence with employees of BPI to the extent the documents pertain to ECM. 

Will you agree to this limitation? 

5. All documents concerning any test or report (including any and all notes and raw 

data) performed or written related to the biodegradability of plastic products under 

ASTM standards D5511, D5526, and D5338 or equivalent standard. 

This Request is very broad and unduly burdensome to even search for, literally encompassing 

approximately 98% of O.W.S.'s business. Further, the Request does not appear to be limited to 

the subject matter of the Proceeding. This Request involves confidential and proprietary 

communications with customers, many of whom are competitors of your client, which would 

have no bearing on the Proceeding. O.W.S. also owes, in most cases, strict contractual duties of 

non-disclosure and confidentiality to such customers, placing O.W.S. in an untenable position of 

being in breach of contract and violating the trust and confidence of its clients. Further, the 

testing information is the customers' property, not O.W.S.'s to disclose. Disclosure could only 

serve to harm O.W.S. and not serve to support any claim or defense in the Proceeding. 

Moreover, some O.W.S. customers are attorneys who hire O.W.S. for privileged and confidential 

testing, subject to the work product doctrine. O.W.S. has no right or ability to violate its 

agreement with such customers, whose testing may relate to competitors of your client. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 

-------------------------------------- 
PUBLIC DOCUMENT 

THOMPSON 

-f11NE·~~------------------------------------

March 7, 2014 

Page -7-

Production of documents in response to this Request would cause irreparable harm to the 

reputation ofO.W.S. and tortiously interfere with the relationship between O.W.S. and its 

customers. 

Again, some background information is in order. This Request literally seeks information 

related to hundreds of customers and thousands of tests on products wholly unrelated in any way 

to your client. As you know, 16 CFR 3.31(c)(l) allows discovery only when it is "reasonably 

expected to yield information relevant to the allegations of the complaint, to the proposed relief, 

or to the defenses of any respondent." The Proceeding relates only to ECM's products and 

ECM's marketing of those products. The Proceeding does not deal with any other company's 

product. Furthermore, nowhere in Answer and Affirmative Defenses of Respondent EEM 

Biofilms, Inc.,; Respondent's Answers to Complaint Counsel's First Request for Admissions; or 

Respondent's Supplemental Answers to Complaint Counsel's First Request for Admissions ECM 

Biofilms, Inc.; did ECM raise any issue regarding other companies' products. 

Producing documents in response to this Request would cause O.W.S. to violate customer 

confidentiality, proprietary, and non-disclosure agreements. Given that in most cases, these 

O.W.S. customers are direct competitors ofECM, this Request appears to be directed at 

obtaining a competitive advantage for ECM, causing harm to O.W.S. customers and, therefore, 

harm to the relationships between O.W.S. and its customers. 

O.W.S. will provide any responsive tests for ECM. Otherwise, ECM must narrow this Request 

and identify what it is actually looking for. If there is testing for a particular product/customer, 

ECM should go directly to that customer for such information. Will you agree to eliminate or 

rephrase this Request? 

6. All documents concerning the education, training, experience, and employee 

evaluations of Mr. Bruno de Wilde [sic]. 

Neither Mr. Bruno De Wilde nor O.W.S. is a party to the Proceeding. Neither are on trial. This 

Request for information regarding his education, training, experience and employee evaluations 

is not in any way related to the scope of the Proceeding and will not lead to any information 

relevant to any claim or defense in the Proceeding. Moreover, this Request clearly seeks 

information, at least in part, that would be confidential to Mr. De Wilde. We cannot determine 

any valid basis for the information Requested. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-filNE~~------------------------------------

March 7, 2014 

Page -8-

However, to the extent O.W.S. has a biography or a CV for Mr. De Wilde, O.W.S. will produce 

it. Will you agree to so limit the Request? 

7. All documents written or authored by Mr. de Wilde [sic] concerning plastic 

products claiming to be biodegradable with the use of an additive product, 

including, but not limited to ECM's additive (Master Batch Pellets). 

This Request is very broad and unduly burdensome to even search for. The words "written or 

authored by" are incredibly broad and could include every email, every test, and every comment 

Mr. De Wilde ever made in the context of O.W.S. Further, the Request is not limited to the 

subject matter of the Proceeding. This Request may also involve confidential and proprietary 

communications with customers, some of which are competitors of your client, which would 

have no bearing on the Proceeding. O.W.S. would also, in all likelihood, owe strict contractual 

duties of non-disclosure and confidentiality to such customers, placing O.W.S. in an untenable 

position of being in breach of contract and violating the trust and confidence of its clients. This 

could only serve to harm O.W.S. and not serve to support any claim or defense in the 

Proceeding. Moreover, some of our customers are attorneys who hire O.W.S. for privileged and 

confidential testing, subject to the work product doctrine. O.W.S. has no right or ability to 

violate its agreement with such customers, whose testing may relate to competitors of your 

client. Production of documents in response to this Request would cause irreparable harm to the 

reputation ofO.W.S. and tortiously interfere with the relationship between O.W.S. and its 

customers. 

As you are aware, 16 CFR 3.31(c)(l) allows discovery only when it is "reasonably expected to 

yield information relevant to the allegations of the complaint, to the proposed relief, or to the 

defenses of any respondent." The Proceeding relates only to ECM's products and ECM's 

marketing of those products. The Proceeding does not deal with any other company's product. 

Furthermore, nowhere in Answer and Affirmative Defenses of Respondent EEM Biofilms, Inc.; 

Respondent's Answers to Complaint Counsel's First Request for Admissions; or Respondent's 

Supplemental Answers to Complaint Counsel's First Request for Admissions ECM Biofilms, Inc.; 

did ECM raise any issue regarding other companies' products. 

Producing documents in response to this Request would cause O.W.S. to violate customer 

confidentiality, proprietary, and non-disclosure agreements. Given that in most cases, these 

O.W.S. customers are direct competitors ofECM, this Request appears to be directed at 

obtaining a competitive advantage for ECM, causing harm to O.W.S. customers and, therefore, 

harm to the relationships between O.W.S. its customers. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-f1INE~~------------------------------------

March 7, 2014 

Page -9-

If you are seeking presentations or published materials of Mr. De Wilde, to the extent they relate 

to ECM, O.W.S. will produce them. Otherwise, ECM must narrow this Request and identify 

what it is actually looking for. Will you agree to eliminate or rephrase this Request? 

8. All documents concerning the education, training, experience, and employee 

evaluations of Mr. Richard Tillinger. 

Neither Mr. Tillinger nor O.W.S. is a party to the Proceeding. Neither are on trial. This Request 

for information regarding his education, training, experience and employee evaluations is not in 

any way related to the scope of the Proceeding and will not lead to any information relevant to 

any claim or defense in the Proceeding. Moreover, this Request clearly seeks information, at 

least in part, that would be confidential to Mr. Tillinger. We cannot determine any valid basis 

for the information Requested. 

However, to the extent O.W.S. has a biography or a CV for Mr. Tillinger, O.W.S. will produce 

it. Will you agree to so limit the Request? 

9. All documents, including tests and reports, written or authored by Mr. Tillinger 

concerning plastic products claiming to be biodegradable with the use of an additive 

product, including, but not limited to ECM's additive (MasterBatch Pellets). 

This Request is very broad and unduly burdensome to even search for. The words "written or 

authored by" are incredibly broad and could include every email, every test, and every comment 

Mr. Tillinger ever made in the context ofO.W.S. Further, the Request is not limited to the 

subject matter of the Proceeding. This Request may also involve confidential and proprietary 

communications with customers, some of which are competitors of your client, which would 

have no bearing on the Proceeding. O.W.S. would also, in all likelihood, owe strict contractual 

duties of non-disclosure and confidentiality to such customers, placing O.W.S. in an untenable 

position of being in breach of contract and violating the trust and confidence of its clients. This 

could only serve to harm O.W.S. and not serve to support any claim or defense in the 

Proceeding. Moreover, some of our customers are attorneys who hire O.W.S. for privileged and 

confidential testing, subject to the work product doctrine. O.W.S. has no right or ability to 

violate its agreement with such customers, whose testing may relate to competitors of your 

client. Production of documents in response to this Request would cause irreparable harm to the 

reputation ofO.W.S. and tortiously interfere with the relationship between O.W.S. and its 

customers. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-f1INE~~------------------------------------

March 7, 2014 

Page -10-

Producing documents in response to this Request would cause O.W.S. to violate customer 

confidentiality, proprietary, and non-disclosure agreements. Given that in most cases, these 

O.W.S. customers are direct competitors ofECM, this Request appears to be directed at 

obtaining a competitive advantage for ECM, causing harm to O.W.S. customers and, therefore, 

harm to the relationships between O.W.S. its customers. 

If you are seeking presentations or published materials ofMr. Tillinger, to the extent they relate 

to ECM, O.W.S. will produce them. Otherwise, ECM must narrow this Request and identify 

what it is actually looking for. Will you agree to eliminate or rephrase this Request? 

10. All documents and correspondence concerning any amendments, vote(s), and/or 

"negatives" related to ASTM standards D5511, D5526, and D5338. 

This Request is very broad and unduly burdensome. Further, the Request is not limited to the 

subject matter ofthe Proceeding. Mr. Sinclair himself is involved in these amendments, votes 

and/or "negatives." There is no reason that O.W.S. should be burdened with providing 

information to ECM well within its reach, particularly given that Mr. Sinclair is on the ASTM 

subcommittee and would have received similar information. 

Will you agree to eliminate this Request? 

Protective Order 

Because a number of our issues with the Requests relate to the confidential and proprietary 

information ofO.W.S. and/or its customers, we would like to address the inadequacy ofthe 

Protective Order attached to the Subpoena. As explained, many of the documents Requested by 

the Subpoena contain sensitive and confidential information ofO.W.S. customers, many of 

whom are direct competitors of ECM, such as material or products formulations, product 

construction, manufacturing techniques, testing results, and marketing plans. O.W.S. customers 

and O.W.S. would be harmed by the release of this information. The Protective Order does not 

consider the specific nature ofO.W.S.'s business, the crucial relationships between O.W.S. and 

its customers and the trust on which those relationships are built, or how those relationships 

would be harmed by releasing customer information, even under the standard Protective Order. 

In any event, the Protective Order would not serve to excuse the complete lack of relevance of 

the Requested documents to the Proceeding. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-f11NE·~~-----------------------------------

March 7, 2014 

Page -11-

Expenses 

Even if the scope of the Subpoena Requests are narrowed considerably, O.W.S. will still incur 

significant costs in complying with the Subpoena. In addition to the labor involved in searching, 

compiling, and marking documents, O.W.S. has already and will continue to incur significant 

legal costs as a direct result of the Subpoena. 

While a subpoenaed party may be expected to absorb some reasonable costs, unreasonable 

costs, particularly in relation to the size of the company, are to be borne by the party and the 

party's counsel issuing the subpoena according to the Commission. O.W.S. is a relatively 

small company, and the effort to comply will pull people away from the conduct of business 

for its customers. This will delay the performance of testing and perhaps cause customers 

to go elsewhere for their testing, thereby significantly harming revenues from that testing. 

Furthermore, legal fees alone to respond to this Subpoena will amount to a significant 

percentage of total annual revenues for O.W.S. In addition, there will be the cost of the 

manpower required to search company records for documents relevant to the Subpoena. 

These costs of legal fees, time and expense of personnel, and potential lost business might 

possibly reduce the company to losing money in 2014. O.W.S., if forced to respond to any 

overly burdensome Requests, will seek payment of expenses to do so. 

Conclusion 

O.W.S. does not sell products in ECM's industry. O.W.S. has no interest in the Proceeding 

and will not be affected by the outcome of the Proceeding, regardless of that outcome. To 

the extent that ECM seeks information regarding ECM's customers' products that utilize 

ECM additives and testing thereof, ECM should obtain that information directly from 

ECM's customers. Moreover, O.W.S. cannot be made into some involuntary form of expert 

for ECM. From the scope of the Subpoena Requests, the only conclusions we can come to, 

as I said in my email yesterday, are that ECM's intent is to harass, burden and harm O.W.S. 

for some reason in this process and/or achieve competitive information and thereby 

competitive advantage. For the reasons set forth herein, we ask that you agree to withdraw 

and/or modify the Requests as stated. 

I sent an email to you yesterday asking to discuss these issues and have not heard back from 

you. Given that the deadline for filing a Motion is fast approaching, can you please contact 

me as soon as possible? If you can discuss this weekend, please send me an email and we 

can arrange a time. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-E 
PUBLIC DOCUMENT 

THOMPSON 

-f1INE~~-----------------------------------

March 7, 2014 

Page -12-

Sincerely, 

Christine Haaker 

cc: Jonathan W. Emord (via Electronic Mail) 

Peter A. Arhangelski (via Electronic Mail) 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-E 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-F 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-F 
From: 

To: 

Cc: 

Subject: 

Date: 

Attachments: 

Importance: 

Counsel, 

Haaker. Christine 

Lou Caouto 

Jonathan Emord; Peter Arhangelskv; Smith. Jeremy 

RE: In the Matter of ECM BioFilms, Inc. 

Monday, March 10, 2014 2:22:00 PM 

image004.jpg 

imageOOl.ipg 

High 

Can you please respond to my email and letter fi·om Friday? 

Thank you. 

Christine 

Christine M. Haaker 1 Partner 1 Thompson Hine LLP 

10050 Innovation Drive, Suite 400 1 Dayton, Ohio 45342 

Office: 937.443.6822 1 Mobile: 937.609.8418 

Fax: 937.443.6635 1 Email: Christine.Haaker@ThompsonHine.com 

Web: http://www.ThompsonHine.com 

PUBLIC DOCUMENT 

Consistently ranked a top law firm in the country for client service for 10 consecutive years in 

BTl's survey of general counsel and C-level executives. 

Atlanta 1 Cincinnati 1 Cleveland 1 Columbus 1 Dayton 1 New York 1 Washington, D.C. 

From: McPherson, Mari 

Sent: Friday, March 07, 2014 5:23 PM 

To: lcaputo@emord.com 

Cc: jemord@emord.com; parhangelsky@emord.com; Haaker, Christine 

Subject: In the Matter of ECM BioFilms, Inc. 

Please see the attached from Christine Haaker. 

Mari McPherson, Secretary 1 Thompson Hine LLP 

Austin Landing I 

Suite 400 

10050 Innovation Drive 

Dayton, Ohio 45342-4934 

Office: 937.331.6099 1 Fax: 937.443.6910 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-F 
Visit our new website at www.ThompsonHine.com. 

PUBLIC DOCUMENT 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-F 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-G 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-G 
From: 

To: 

Cc: 

Subject: 

Date: 

Attachments: 

Hi Christine, 

Lou Caputo 

Christine.Haaker@thompsonhine.com 

Peter Arhanqelsky 

Docket No. 9358, Third-Party Subponea To O.W.S. 

Monday, March 10, 2014 3:39:00 PM 

102213 Protective Order.pdf 

PUBLIC DOCUMENT 

Thank you for your letter. We appreciate your comments concerning the OWS subpoena. We 

respond as follows. 

The FTC has challenged whether certain ASTM standards, particularly 05511 or 05526, are viable 

methods for demonstrating real-world biodegradability in plastics. The FTC's Complaint alone has 

engendered an exceptionally broad scope of what may be considered relevant topics and 

information. The FTC has used OWS documents (commissioned by third parties) against ECM in this 

proceeding. OWS has apparently prepared (or assisted in the preparation of) promotional materials 

designed to discredit or challenge ECM's marketing claims. The information sought in ECM's 

subpoena of OWS is calculated to lead to the adduction of relevant evidence in this case and, as 

such, ECM has a right to that information. 

You make several general points in your letter. You state that searching for information will be 

overly burdensome to O.W.S. You explain that certain responsive materials are confidential. You 

reference documents that may be altered and seemingly ascribe malicious and fraudulent intent 

onto ECM and/or any representative or advocate without specificity or examples of proof. We are 

very concerned with those allegations that lack any foundation or explanation, and ECM disputes to 

the fullest extent each such statement or suggestion. You further allege that ECM seeks a 

competitive advantage through its subpoena schedule. We find this allegation highly dubious 

considering that it presupposes that ECM somehow wanted, invited, and/or planned for the federal 

government to launch an unparalleled attack on ECM. ECM is the respondent in this action, not a 

civil plaintiff. The information it requests in the subpoena is relevant to its defense against FTC 

allegations. ECM therefore has a right to that information under 16 C.F.R. 3.31(c) and 3.34, and will 

promptly seek an order compelling your response and, if necessary, for sanctions unless the 

information we seek is supplied in accordance with the subpoena. 

In light of your concerns about scope and burden, we propose the following changes to provide 

relief without compromising the provision of information needed in ECM's defense:. 

Instructions: 

C: This instruction stands. 

0: To expedite disclosure, O.W.S. need not list which documents are responsive to a certain 

request. 

E: We do not seek documents protected by the attorney-client privilege. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-G 
PUBLIC DOCUMENT 

Request No.1: This request stands. 

Request No. 2: This request is eliminated. 

Request No.3: This request stands. 

Request No.4: This request stands, however, the temporal limitation is reduced to documents that 

were created on or after January 1, 2010. FTC agents have spoken directly with BPI members about 

material issues present in this case. Among other reasons, this request is relevant to investigating 

the relationship and association between O.W.S. and the BPI as well as investigating bias. 

Request No.5: This Request is rephrased as follows: 

"Since January 1, 2010, all documents concerning any test or report (including any notes and raw 

data) performed or written to the biodegradability of plastic products under ASTM standards D5511 

and D5526 for ECM and/or a plastic product containing the ECM additive." 

Request No.6: This request stands. 

Request No.7: This request is eliminated. 

Request No.8: This request stands. 

Request No.9: This request is eliminated. 

Request No. 10: This request is rephrased as follows: 

"Since January 1, 2010, all documents and correspondence concerning any amendments, vote(s); 

and/or 'negatives' related to ASTM standard D5511 and D5526." 

We understand that O.W.S. has concerns about confidentiality. The FTC's Rules contemplate 

disclosure by third-parties of information that is considered confidential, and the Rules and the AU's 

Protective Order also provides mechanisms for protecting sensitive material if material disclosed is 

confidential. We have sent you a copy of the protective order; and I include another copy with this 

email for convenience. Please follow all requirements and directions of the AU in his Protective 

Order, which ECM will abide by to the fullest extent. 

I welcome discussing this matter further but full production must be received on or before March 

24, 2014. Please let me know of a convenient time for us to speak by phone. 

Sincerely, 

Lou 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-G 
PUBLIC DOCUMENT 

Lou Caputo 1 EMORD & AssociATES, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 

388-8901 1 Facsimile: (602) 393-4361 1 www.emord com 

.MQil.Q.E.: 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. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-G 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-H 
From: 

To: 

Cc: 

Subject: 

Date: 

Lou, 

Haaker Christine 

Lou Caouto 

Peter Arhangelsky; Smith. Jeremy 

RE: Docket No. 9358, Third-Party Subponea To O.W.S. 

Monday, March 10, 2014 3:47:19 PM 

PUBLIC DOCUMENT 

Thank you for your response. I have not reviewed it in full yet but will. I would like to speak on this in the 

morning if you are available? Please give me a time. I thought we had a productive call the last time we spoke 

and perhaps we will be able to work out our issues. The most important issue for my client is that its business 

cannot be harmed in this process. Divulging its customers' testing information will result in loss of business. 

O.W.S. is firmly convinced of this, therefore production of its customers' infornmtion is out of the question. If 

there are specific customers that I can get to quickly with requests that they consent to disclosure, that may change 

things. The timing here is an issue \vith our Motion having to be filed by Wednesday. Also, you mention 3/24 

below. Are you expecting production 3/24 or 3/14? 

I look fmward to speaking with you in the morning. 

Best, 

Christine 

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, March 10, 2014 6:39 PM 

To: Haaker, Christine 

Cc: Peter Arhangelsky 

Subject: Docket No. 9358, Third-Party Subponea To O.W.S. 

Hi Christine, 

Thank you for your letter. We appreciate your comments concerning the OWS subpoena. We 

respond as follows. 

The FTC has challenged whether certain ASTM standards, particularly 05511 or 05526, are viable 

methods for demonstrating real-world biodegradability in plastics. The FTC's Complaint alone has 

engendered an exceptionally broad scope of what may be considered relevant topics and 

information. The FTC has used OWS documents (commissioned by third parties) against ECM in this 

proceeding. OWS has apparently prepared (or assisted in the preparation of) promotional materials 

designed to discredit or challenge ECM's marketing claims. The information sought in ECM's 

subpoena of OWS is calculated to lead to the adduction of relevant evidence in this case and, as 

such, ECM has a right to that information. 

You make several general points in your letter. You state that searching for information will be 

overly burdensome to O.W.S. You explain that certain responsive materials are confidential. You 

reference documents that may be altered and seemingly ascribe malicious and fraudulent intent 

onto ECM and/or any representative or advocate without specificity or examples of proof. We are 

very concerned with those allegations that lack any foundation or explanation, and ECM disputes to 

the fullest extent each such statement or suggestion. You further allege that ECM seeks a 

competitive advantage through its subpoena schedule. We find this allegation highly dubious 
PUBLIC DOCUMENT 

considering that it presupposes that ECM somehow wanted, invited, and/or planned for the federal 

government to launch an unparalleled attack on ECM. ECM is the respondent in this action, not a 

civil plaintiff. The information it requests in the subpoena is relevant to its defense against FTC 

allegations. ECM therefore has a right to that information under 16 C.F.R. 3.31(c) and 3.34, and will 

promptly seek an order compelling your response and, if necessary, for sanctions unless the 

information we seek is supplied in accordance with the subpoena. 

In light of your concerns about scope and burden, we propose the following changes to provide 

relief without compromising the provision of information needed in ECM's defense: 

Instructions: 

C: This instruction stands. 

0: To expedite disclosure, O.W.S. need not list which documents are responsive to a certain 

request. 

E: We do not seek documents protected by the attorney-client privilege. 

Request No. 1: This request stands. 

Request No.2: This request is eliminated. 

Request No.3: This request stands. 

Request No.4: This request stands, however, the temporal limitation is reduced to documents that 

were created on or after January 1, 2010. FTC agents have spoken directly with BPI members about 

material issues present in this case. Among other reasons, this request is relevant to investigating 

the relationship and association between O.W.S. and the BPI as well as investigating bias. 

Request No.5: This Request is rephrased as follows: 

"Since January 1, 2010, all documents concerning any test or report (including any notes and raw 

data) performed or written to the biodegradability of plastic products under ASTM standards 05511 

and 05526 for ECM and/or a plastic product containing the ECM additive." 

Request No.6: This request stands. 

Request No.7: This request is eliminated. 

Request No.8: This request stands. 

Request No.9: This request is eliminated. 

Request No. 10: This request is rephrased as follows: 
PUBLIC DOCUMENT 

"Since January 1, 2010, all documents and correspondence concerning any amendments, vote(s); 

and/or 'negatives' related to ASTM standard 05511 and 05526." 

We understand that O.W.S. has concerns about confidentiality. The FTC's Rules contemplate 

disclosure by third-parties of information that is considered confidential, and the Rules and the AU's 

Protective Order also provides mechanisms for protecting sensitive material if material disclosed is 

confidential. We have sent you a copy of the protective order; and I include another copy with this 

email for convenience. Please follow all requirements and directions of the AU in his Protective 

Order, which ECM will abide by to the fullest extent. 

I welcome discussing this matter further but full production must be received on or before March 

24, 2014. Please let me know of a convenient time for us to speak by phone. 

Sincerely, 

Lou 

Lou Caputo I EMoRo & AssociATES, P.C. I 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 

388-8901 1 Facsimile: (602) 393-4361 I www emord.com 

NQIIQE.: 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. 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-I 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-I 
From: 

To: 

Cc: 

Subject: 

Date: 

Hi Christine, 

Lou Caputo 

Christine.Haaker@thompsonhine.com 

Peter Arhanqelsky 

Docket No. 9358, Third-Party Subpoena to O.W.S. 

Wednesday, March 12, 2014 3:01:00 PM 

PUBLIC DOCUMENT 

Thank you again for your call yesterday. We have discussed the points raised in the call with our 

client. As previously explained, ECM did not choose nor desire for the FTC to file its Complaint. ECM 

regrets that the FTC has instituted such an action against ECM and seemingly the biodegradable 

plastics industry generally. The FTC, not ECM, has defined the permissible scope of materials issues, 

and as such, which information and materials may lead to relevant information. Notwithstanding, at 

multiple junctures, we have now attempted to work with O.W.S. to reduce any burden associated 

with responding to ECM's subpoena. ECM further agrees to limit remaining Requests as follows: 

Instructions: 

C: This Instruction stands with your requested exception that O.W.S. need not produce extraneous 

portions of a single that are both (1) non-responsive to a Request; and (2) do not relate in any way 

to the context and/or subject matter that is responsive to the Request. For example, O.W.S. need 

not produce subsequent portions of an email chain that are irrelevant, non-responsive and provide 

no context to the responsive content. 

D: No change from 3/10/14 email. 

E: No change from 3/10/14 email. 

Request No.1. All documents and correspondence concerning ECM BioFilms, Inc., Robert Sinclair, 

and /or ECM BioFilms MasterBatch Pellets. 

Request No.3. All correspondence between O.W.S. and any members, employee, representative or 

officer of the United States Federal Trade Commission. 

Request No.4. Since January 1, 2010, all correspondence between O.W.S. and Steve Mojo of the 

Biodegradable Products Institute ("BPI"). 

Request No.5. Since January 1, 2010, all documents concerning any test or report (including any 

notes and raw data) performed or written to the biodegradability of plastic products under ASTM 

standards 05511 and 05526 for ECM and/or a plastic product containing the ECM additive. 

Request No.6. All documents concerning the education, training, and experience of Mr. Bruno De 

Wilde. 

Request No.8. All documents concerning the education, training, and experience of Mr. Richard 

Tillinger. R esp. 0 pp. t o . . . o . o 0 w S M t t Q uas h 

Exh. RX-1 
PUBLIC DOCUMENT 

Request No. 10. Since January 1, 2010, all documents and correspondence (except correspondence 

in which Robert Sinclair or other ECM employee was a party to such correspondence) concerning 

any amendments, vote(s); and/or 'negatives' related to ASTM standard 05511 and 05526. 

Through these final modifications, ECM has strived to limit (1) the time and effort of O.W.S. 

personnel to search for documents; and (2) documents containing sensitive materials. We 

understand that 0. W.S. protests disclosing documents and materials that display content under 

confidentiality agreements between O.W.S. and third party customers. You have not described, 

however, concrete details concerning how 0. W.S. maintains its records and why searches for the 

above materials would be excessive. Further, and notwithstanding that you say that O.W.S. is a 

small firm, there is no indication from you as to how computer key-word searches and similar 

methods would be insufficient to locate responsive documents. Finally, as we discussed, O.W.S. is 

not the only testing firm to receive a third-party subpoena in this matter. Other firms have 

expressed similar concerns and submitted documents under a confidential designation. Please note 

that given such circumstances and without any ability to understand why such narrowed production 

would be unreasonable or excessive, ECM may contest recoupment of costs without proper and/or 

sufficient legal basis and context. Given the facts that you have explained and are known to us, we 

do not consider it likely that O.W.S. would succeed in a challenge to the above requests. 

We have extended the date for O.W.S. to respond to ECM's subpoena by March 24, 2014. Please 

submit materials by that time. 

Sincerely, 

Lou Caputo I EMoRo & AssociATEs, P.C. I 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 

388-8901 1 Facsimile: (602) 393-4361 1 www.emord.com 

~: 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. 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-I 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-J 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-J 

CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-K-1 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-K-1 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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RESPONDENT 

EXHIBIT 

RX-2 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-K-2 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-L-1 

CONFIDENTIAL- SUBJECT TO 

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Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-L-1 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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EXHIBIT 

RX-L-2 

CONFIDENTIAL- SUBJECT TO 

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Resp. Opp. to O.W.S. Mot. to Compel 

Exh. RX-L-2 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RX-L-3 

CONFIDENTIAL- SUBJECT TO 

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Exh. R.X-L-3 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-L-4 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

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Exh. RX-L-4 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-L-5 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh.RX-L-5 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-L-6 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-L-6 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-M-1 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to O.W.S. Mot. to Quash 

Exh. RX-M-1 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-M-2 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Opp. to Mot. to Quash 

Exh.RX-M-2 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
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REDACTED 
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RESPONDENT 

EXHIBIT 

RX-N 

Resp. Opp. to Mot. to Quash 

Exh.RX-N 
PUBLIC DOCUMENT 

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 

DECLARATION OF LOU CAPUTO IN SUPPORT OF RESPONDENT ECM'S 

MOTION TO COMPEL AND FOR SANCTIONS 

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

true and correct: 

1. I am over the age of eighteen years and I make this affidavit on personal 

knowledge of its contents and in further support of Respondent's Motion for a Protective Order. 

2. I am employed by the law finn Emord & Associates, P.C., which represents ECM 

BioFihns in matters before the Federal Trade Commission. I am an attorney of record fu the 

above-captioned case. 

3. On February 27,2014, I spoke by phone with Ms. Christine Haaker concerning 

ECM's subpoena to O.W.S., service of that subpoena, and about O.W.S.'s request to limit the 

subpoena's scope. 

4. On March 11,2014, I spoke by phone with Ms. Christine Haaker concerning 

ECM's subpoena to O.W.S. and about O.W.S.'s request to limit the subpoena's scope. ECM 

agreed to consider further reductions in scope of its subpoena to O.W.S. 

1 

Resp. Opp. to Mot. to Quash · 

Exh.RX-N 
PUBLIC DOCUMENT 

5. Exhibit RX-A-1 hereto is a true and correct copy of a subpoena duces tecum sent 

to O.W.S., fuc. (Organic Waste Systems) on February 13, 2014. 

6. Exhibit RX-A-2 hereto is a true and correct copy of a subpoena duces tecum sent 

to O.W.S., Inc. on February 28, 2014. 

7. Exhibit RX-A-3 hereto is a true and correct copy of an email sent by me to 

Christine Haaker on February 28,2014. 

8. Exhibit RX-C hereto is a true and correct copy of a letter received by ECM from 

O.W.S. via email from Christine Haak:er on February 27, 2014. 

9. Exhibit RX-D hereto is a true and correct copy of an email received by ECM 

from Christine Haaker on March 6, 2014. 

10. Exhibit RX-E hereto is a true and correct copy of a letter received via email by 

ECM from Christine Haak:er on March 7, 2014. 

11. Exhibit RX-F hereto is a true and correct copy of an email received by ECM 

from Christine Haaker on March 10, 2014. 

12. Exhibit RX-G hereto is a true and correct ?OPY of an email sent by me to 

Christine Haaker on March 10,2014. 

13. Exhibit RX-H hereto is a true and correct copy of an email sent by me to 

Christine Haaker on March 12,2014. 

Respondent's 

Loo~uro=F~ Counsel 

Executed this 21st day of March 2014 in Chandler, Arizona. 

2 

Resp. Opp. to Mot. to Quash 

Exh.RX-N