ORiGINAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

COMPLAINT COUNSEL'S MOTION FOR LEAVE TO FILE THE ATTACHED 

MOTION TO CALL REBUTTAL FACT WITNESSES 

IN EXCESS OF THE WORD COUNT 

In accordance with Rule 3.22(f), Complaint Counsel moves the Court to extend the 

applicable word count limit for Complaint Counsel's attached Motion for Leave to Call Rebuttal 

Fact Witnesses ("Motion for Leave"). For three reasons, Complaint Counsel requests leave to 

file the attached motion of approximately 5400 words: 

• Complaint Counsel's motion consolidates two requests to call rebuttal fact 

witnesses, which could be filed separately. 

• In compliance with the Court's requirements, the motion includes substantial 

citations to and quotations from the transcript, which add length to the brief; and 

• In compliance with the Court's requirements, the motion includes a proffer 

regarding the fact witnesses' potential testimony, which adds additional length to the brief 

For these reasons, good cause exists for the Court to permit Complaint Counsel~ to file· the ·' . 

attached motion. 

Dated: August 25, 2014 

~:: ~ . :: 

Respectfully submitted, 

, .... .. 

Kathez:i.n'€ Jo'hnson (kjohnson3@ftc.gov} ; 

Jon~"tohen (jcohen2@ftc.gov) b'fruro DeCastro ( adecastro@ftc. gov) 

.l:'ederal Trade Commission 

600 Pennsylvania Ave., N.W. M-81028 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747 

Fax: 202-326-2558 

. 

:• 

.. .;. 
PUBLIC DOCUMENT 

STATEMENT REGARDING MEET AND CONFER 

On August 24, 2014, Complaint Counsel emailed Respondent's counsel requesting that 

Respondent consent to this motion for the reasons stated herein. Later that day, Respondent's 

counsel replied that it opposed the relief sought in this motion. Earlier this morning, we further 

conducted an in-person meet and confer regarding the issues this motion raises. 

Dated: August 25,2014 

2 

Kathefipe'}ohnson (kjohnson3@ftc.gov) 

_ Jondtl1An Cohen (jcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551 ; -2747 

Fax: 202-326-2558 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on August 25, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

Two electronic copies (on CDs) to the Office of the Secretary, and one hard copy: 

DonaldS. Clark, Secretary 

Federa! Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc. gov 

Two electronic copies (on COs) and one hard copy to the Office of the Administrative Law 

Judge: 

The Honorable D. Michael Chappell 

Admin~strative Law Judge 

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

Washington, DC 20580 

One electronic. copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P .C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Eric J. Awerbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com 

Date: August 25, 2014 

3 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Katheri~_5l; hnson (kjohnson3@ftc.gov) 

Joq. an Cohen Gcohen2@ftc.gov) 

ArtUro DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -255 1; -2747; 

Fax: 202-326-2558 
. 

ATTACHMENT 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC 

COMPLAINT COUNSEL'S MOTION FOR LEAVE TO CALL 

REBUTTAL FACT WITNESSES 

In accordance with Rule 3.43(d) and the Court's instructions, Complaint Counsel moves 

to present brief rebuttal fact witness testimony from (1) Paul McDonald, Product Manager for 

Goog1e Consumer Surveys ("GCS"), and (2) Tarang Shah, who worked previously as Corporate 

Materials and Applications Manager for Myers Industries. Good cause exists to hear short 

testimony-likely thirty minutes or less--from each witness because both have personal 

knowledge directly contrary to specific factual claims ECM has asserted. 1 

With respect to Mr. McDonald, ECM challenges GCS' validity partly based on a new 

theory that GCS respondents or potential respondents employ various ''masking" techniques such 

as private browsing, hidden cookies, and •<dynamic" or hidden IP addresses? Furthermore, ECM 

makes other new challenges to GCS, including the hypotheses that many users cannot access 

GCS surveys through mobile devices, and that Google allegedly distributes surveys across 

1 In accordance with the Court's instructions, Complaint Counsel reserves the right to 

move to call Dr. Shane Frederick as an expert rebuttal witness after Dr. David Stewart testifies. 

Additionally, Complaint Counsel will call Dr. Frederick Michel to as a rebuttal expert 

(Complaint Counsel previously disclosed Dr. Michel's expert rebuttal testimony in accordance 

with the Court's deadline). 

2 ECM also raised various unsupported challenges to GCS earlier. In response, among 

other things, Professor Shane Frederick testified (1) that it is unnecessary to know specific 

demographic information about each survey respondent to draw valid conclusions about the 

res~lts, see Tr. 1 079-1080:20-18, (2) an independent study PEW Research performed confirms 

that the demographics of GCS users match those of internet users generally, see Tr. 1069-

1070:8-18 (discussing CCX-874); and (3) the consistency between APCO, Synovate, and GCS 

establishes convergent validity with respect to the separate studies' conclusions regarding the 

substantial minority of consumers who believe products labelled "biodegradable" will 

biodegrade in one year or less, see Tr. 1173:1-15. 
PUBLIC DOCUMENT 

participating websites in a manner that somehow skews results.3 For two reasons, good cause 

exists to permit this testimony. First, Mr. McDonald's potential testimony satisfies the fourfactor test that courts employ when evaluating motions to call unlisted rebuttal witnesses.4 

Second, Mr. McDonald·s testimony is very important given the significance of consumer 

perception issues to this case. Rendering a decision concerning GCS on an incomplete record 

would disserve the public interest. 5 

With respect to Mr. Shah, ECM's purported expert Dr. Ron Sahu opined for the first time 

at trial that Myers Industries may not have manufactured the samples it provided to Professor 

Frederick Michel in accordance with ECM's instructions, rendering Professor Michel's 

conclusions allegedly unreliable. 6 For two reasons, good cause exists to permit Mr. Shah to 

respond. First, Mr. Shah's proposed testimony satisfies the operative Jour-factor test. Second, 

the testimony is important because-despite the dozens of tests now before the Court-Professor 

Michel's analysis is the only published, peer-reviewed study of the ECM additive. 

Alternatively, although good cause exists to grant this motion (thereby completing the 

record), if the Court precludes some or all of the proposed testimony, we request leave to present 

an appropriate offer of proof pursuant to Rule 3.43(i). However, in light of the Court's oral order 

this morning, we also provide written offers of proof. 

3 As discussed further below, we anticipate that ECM will continue to attack GCS on 

these grounds through Dr. David Stewart's testimony, although Dr. Stewart's report references 

various "masking" techniques in onJy the most opaque manner. See RX -8 56 at 11 (observing 

that Google's inferred demographics are "based on information associated with or that resides on 

a computer, such as an IP address or cookies," and that such information may be unavailable or 

inaccurate). Dr. Stewart's report does not mention anything about mobile devices, or anything 

about the manner in which Google distributes surveys across participating websites. 

4 See infra at 4. 

5 Because Google will testifY regarding how its survey technology works, and such 

information is unavailable to the public, Google's proposed testimony should receive in camera 

treatment. Specifically, if Google explains publically how its product functions behind-thescenes (includmg how Google addresses hidden IP addresses or deleted cookies), other parties 

could steal Google's technology. This would "likely result in a clearly defined, serious injury" 

to Google, rendering in camera treatment appropriate. See Rule 3.45(b). Complaint Counsel 

understands that Google will file a motion seeking in camera treatment later today, and we join 

that motion. 

6 See Tr. V9, 200:4-16 (volume 9 ('"V9") rough); id. at 218:20-219:11. 

2 
.PUBLIC DOCUMENT 

BACKGROUND 

A. Background and Testimony Concerning Google Consumer Surveys 

On June 4, Yale Marketing Professor Shane Frederick produced an expert report 

disclosing results of GCS research showing that substantial percentages of consumers .believe 

that plastic products labelled "biodegradable" will biodegrade in one year or less.7 As Professor 

Frederick opined in his report and later testified, 8 his GCS results conformed with an earlier 

telephone survey conducted by APCO and an earlier internet study conducted by Synovate. 

On June 18, ECM's consumer perception expert, Dr. David Stewart, issued a report 

responding to Professor Frederick's work. Dr. Stewart's report criticized GCS in a number of 

respects, calling it an "unproven research tool" that "is just terrible."

9 Dr. Stewart alleged that a 

GCS respondent could be a child "or a male pretending to be a woman." ld. at 11. Dr. Stewart 

also opined generally that the GCS sample popu,lation is "unknown and unknowable" because: 

The only demographic information about a sample is that provided by 

respondents or 'inferred" by Google based on other information associated with 

or that resides on a computer, such as an IP address or cookies, that may be 

available for a given respondent. Such information is often not available and 

when there are multiple. users o~the same com~uter the i¥Sormation that is present 

may be an amalgam of mformatton about multiple users. 

Significantly, Dr. Stewart's report does not mention alleged "masking" techniques such as 

private browsing, hidden cookies, and "dynamic" or hidden IP addresses. The report also does 

not assert that (allegedly) many internet users cannot access GCS surveys through mobile 

devrces, nor does the report claim that (allegedly) Google allegedly distributes surveys across 

participating websites in a manner that somehow affects survey results. 

7 See CCX-890 at 1; see also CCX-860 at 1 (amended report). The Court is familiar with 

the testimony regarding GCS and the role it plays in this case; as such, we only summarize a few 

relevant facts here. 

8 CCX-860 at 'iMf 19; 24; Tr. at 1043:8-20; id. at 1055-1060:24-12; id. at 1145:3-14; id. at 

1155-II56:9-4; id. at 1173:7-15. 

9 RX-856 at 14. 

10 ld. at 10-11. 

3 
PUBLIC DOCUMENT 

On June 23, ECM deposed Professor Frederick. Although ECM asked various questions 

regarding GCS, ECM curiously never asked Professor Frederick what he did to research GCS. 11 

On June 30, Professor Frederick issued a rebuttal report that affirmatively disclosed his 

commumcations with Google generally and Mr. McDonald in particular: 

One of Dr. Stewart's primary critiques of my GCS studies is that they did not 

sample a representative population. . . . Through two telephonic meetings with 

Google representatives, including one with GCS Product Manager Paul 

McDonald, I have confirmed the mechanics and methodology behind GCS. Such 

interviews with data collectors are regu~¥'ly conducted in my field to ascertain the 

reliability of data-gathering techniques. 

ECM apparently took no action following this disclosure. 

At trial, ECM's cross-examination of Dr. Frederick wrongly implied (1) that various 

"masking" techniques rendered GCS allegedly unreliable; 13 (2) that GCS data is invalid because 

11 See RX-858 (deposition of Professor Shane Frederick). 

12 CCX-865 at 3 (internal citations and footnote omitted) (emphasis added). 

13 Tr. at 13 3 5:11-12 ("Do you know what percentage of internet users mask their 

identities online?); id. at 1332:14-16 ("Do you know the difference between a static IP address 

and a dynamic IP address?''); id. at 1332:14-15 ("Does Google survey report data from dynamic 

IP addresses or only frorn static IP addresses?); id at 1333:1-2 ("Are you familiar with dynamic 

host configuration protocol?"'); id. at 1333:4-5 ("Do you happen to know how dynamic host 

configuration protocol assigns IP addressesT'); id. at 1333:7-9 ("Do you know whether a 

dynamic IP address changes once or innumerable times?"); id. at 1334:6-7 (''Does Google survey 

require that browsers accept cookies in order for a participant to take the survey?); id. at 1334:9 

("Can a user turn off cookies?"); id. at 1334:15-16 ("Are there commercially available programs 

that enable a user to block his identity or her identity?"); id. at 1334:21-22 ("Do you know 

whether Google surveys relies on a browser's cache files[?]"); id. at 1334~25-1335:1 ("Does 

Google Chrome have a feature that allows you to browse privately?"); id. at 1335:5-6 (''Do you 

know what percentage of Internet users avail themselves of options to prevent cookies?"); id. at 

1335:8-9 ("Do you know what percentage oflntemet users block cookies?"); id. at 1335:14-16 

("Do you know what percentage of Internet users rely on Google Chrome's feature that allows 

you browse privately?'); id. at 1337:8~9 ("[R]egarding Google's surveys, do you know if a 

respondent or a response to a survey question is accepted from a person who is surfing 

anonymously or using a cloaking feature?") (question from the Court). 

4 
PUBLIC DOCUMENT 

GCS posts surveys on web sites in some fashion that renders the results allegedly unreliable; 14 

and (3) GCS data is allegedly unreliable because meaningful percentages of internet users cannot 

access GCS surveys through mobile devices. 15 Complaint Counsel expects ECM's consumer 

perceptiOn expert, Dr. David Stewart, to testify regarding these three issues. 16 We further 

anticipate that Goog1e's limited rebuttal testimony will address these specific questions. 

14 See, e.g., Tr. at 1208:7-9 (':you did not know where the question was posted in front of 

a specific site; correct?); id. at 1209:17-25 ("you don~t have the IP address ofthe news site, the 

travel site, the YouTube site or the other entertainment site or the reference site" on which 

Professor Frederick's GCS surveys were posted); id. at 1260:2-8 ("So you don't know whether 

that popup appears before a news story that let's say concerns mismanufacture of toys, for 

example. You wouldn't know whether your popup was on a news Web site that hand an article 

about, let's say, Consumer Product Safety Commission investigating manufactured toys; right? 

You wouldn't know."); id. at 1261:20-24 ("So these are your suspicions, but as to exactly where 

your Google Consumer Surveys appeared, you can't recite for use today that content that was on 

those sites when those questions appeared; right?"); id. at 1321:9-13 ('"What empirical evidence 

do you possess that establishes that people who visited that fraction of sites, the 340 sites, 

included in their Google Consumer Survey are in fact representative of all people who use the 

internet?"). 

15 See, e.g., Tr. 1328:21-23 ("Would you agree with me that a lot of people access the 

Internet these days using mobile devices such as iPhones, iPads and Android devices?"); id. at 

1329:11-13 ("Do you know whether without a specific app added to a mobile device whether 

Google surveys appear on mobtle devices?); id. at 1329:16-19 ("'Do you know what percentage 

oflntemet users access the internet through their mobile devices?"); id. at 1330:12-14 ("Do you 

know what percentage of people in the United States under the age 50 access the Internet 

exclusively through mobile devices?"); id. at 1330:16-18 ( .. Do youknowwhatpercentage of 

global mobile Web users use mobile as their primary or exclusive means of going online?"); id. 

at 13 31 :18-21 ("Have you investigated whether there is a correlation between mobile device use 

and age?"); id. at 1331:22-23 ("Have you investigated whether there is a correlation between 

fixed PCs and laptops and age?"). 

16 Complaint Counsel is aware that ECM's counsel's questions are not evidence. Indeed, 

as of this filing, other than Dr. Stewrut's opaque report, the only record evidence regarding GCS' 

representativeness is from Professor Frederick, who opined, among other things: (1) with 

respect to the population of American consumers, GCS is "highly representative both 

demographically and psychographically," Tr. at 1410:13-21; (2) Google has "high incentives" to 

get ''basic demographic information reasonably accurate," including the fact that Google derives 

income from advertising revenue, id. at 1398:6-22; and (3) GCS' representativeness is 

established in various ways, including the PEW research study, see CCX-874, Tr. at 1068:19-

1070:18, and GCS' performance in predicting the 2012 election results, see CCX-872, Tr. at 

1074:16-1075:2. It is precisely because ECM also knows that its counsel's questions are not 

evidence that we anticipate Dr. Stewart will push (if not exceed) the limits ofthe scope ofhis 

report, in an attempt to rectify the current non-existence of any record evidence that GCS is 

somehow unrepresentative. 

5 
PUBLIC DOCUMENT 

Notably, ECM concluded its cross-examination of Dr. Frederick on August 12, and 

Complaint Counsel issued a subpoena to Google on August 13 (copying ECM).17 On August 14, 

ECM requested an immediate meet-and-confer regarding the Google subpoena, and indicated it 

would seek relief from the Court: ""Because of the urgency ofthis matter, should you not provide 

us with proof that you have withdrawn the [Google] subpoena by 1 PM EST today [August 14], 

we wlll seek relief from the Court promptly!'18 Although the meet and confer occurred and 

we did not withdraw the subpoena, ten days have passed, and ECM has not sought relief. 

B. Background and Testimony Concerning Professor Michel's Study 

Through the testimony of consultant Dr. Ron Sahu, ECM elicited testimony challenging 

Dr. Frederick Michel's published paper fmding the ECM additive completely ineffective. 19 

Specifically, in response to ECM's question, Dr. Sahu testified: 

QUESTION: What do you know about the test plastics that were tested in that 

study? 

SAHU: I think he [Professor Michel] had a number of them ifl recall. 

There was really no discussion ofhow he obtained the test 

plastics, ifi can remember. What I do remember is it was 

reported that they had 2 percent ECM additive that was the 

loading rate of the plastic-rather, the additive into the plastic. 

But I don't recall a discussion ofwhere he obtained the plastics, 

how they're manufactured, how they're made and certainly no 

discuss of all these other details of important properties that will 

affe%the biodegradation rate. But I do remember the loading 

rate. 

Dr. S ahu gave similar testimony on cross-examination: "We don't know how the plastic was 

provided to Or. Michel . . . [I]n other words, the chain of custody issues, how it came about and 

who- what was the composition of the plastic ... ifthere are any antimicrobials, how it had 

17 Ex. A hereto, Subpoena to Google (Aug. 13, 2014). 

18 Ex. B hereto, Email from E. Awerbuch (Aug. 14, 2014) (emphasis added). 

19 See CCX-905 (E. Gomez & F. Michel, Biodegradability of Conventional and RioBased Plastics and Natural Fiber Composites During Composting, Anaerobic Digestion and 

Long-Term Soil Incubation, 98 POLYMER DEGRADATION & STABILITY 2583-91 (2013)). 

20 V9, 200:4-16. 

6 
PUBLIC DOCUME.NT 

been processed in the batch blending because it[] was unusually more than the particular 

recommended 1 percent it kind of raised a red flag[.]"21 

Dr. Sahu's report never contended that the ECM plastic Professor Michel tested was 

allegedly improperly manufactured in some way that would impair the additive's alleged 

functionality. While employed at Myers 'Industries, Mr. Shah manufactured the plastic Professor 

Michel tested. Mr. Shah's proposed rebuttal testimony will address the narrow question 

regarding the manufacture ofProfessor Michel's test material. 

LEGAL STANDARD 

Under Rule 3.43(d)(l), "[a] party is entitled to ... submit rebuttal evidence . .. as, in the 

discretion of the Commission or the Administrative Law Judge, may be required for a full and 

true disclosure of the facts."22 The Court requested that, if Complaint Counsel sought leave to 

call rebuttal fact witnesses, we do so in writing, .and "upon a showing of good cause. "

23 Courts 

follow a four-factor balancing test when considering motions to call unlisted fact witnesses: 

21 Jd. at 219:3-8. 

22 Notably, a party may call fact rebuttal witnesses to respond to the factual 

underpinnings of the adverse party's expert's testimony (such as the testimony Dr. Stewart is 

expected to give). For instance, in POM Wonderful, LLC, No. 9344, the Court granted 

Complaint Counsel's Motion to Call Rebuttal Fact Witness Dr. Philip Kantoffto rebut 

Respondents' expert Dr. David Heber1s factual testimony regarding whether there was a 

consensus among participants at meetings convened by Respondents regarding the significance 

ofPOM's prostate cancer research. POM Wonderfu!Tr. (Oct. 14, 201l)at 3244:28-3247:3. The 

Court specifically instructed Complaint Counsel that Dr. Karitoffwould be permitted only to 

rebut Respondents' expert's factual testimony, and that Complaint Counsel would not be 

pennitted to offer Dr. Kantoff's expert opinions. ld. at 3246:2-19. See also Fish v. Guevara, 12 

Cal. App. 4th 142, 145 (CaL App. Dist. 1993) (stating that an undisclosed rebuttal witness "may 

testify to facts which contradict the factual bas1s for the opinions of other experts but may not 

give opinion testimony which contradicts the opinions of other experts"); Elmer v. Dupnik, No. 2 

CA-CV 2002-0181,2003 Ariz. App. Unpub. LEXIS 393, *5-*6 (Ariz. Ct. App. 2003) (trial court 

did not abuse its discretion by admitting factual deposition testimony to rebut appellants' police 

practice expert's factual testimony regarding Santa Monica P.O.'s routine practices). 

23 Tr. 1425:5-7. The Court also stated that our motion "shall be made as soon as 

possible." ld. at 1425. With respect to Google, we expect Dr. Stewart to offer testimony hostile 

to GCS, but ECM has also represented that it will close its case with Dr. Stewart's testimony. 

Thus, practically speaking, we cannot wait until after the defense case concludes to seek leave to 

present rebuttal testimony. With respect to Mr. Shah, he would respond to Dr. Sahu's testimony, 

and Dr. Sahu testified last week. It also took Complaint Counsel a brief period to ascertain 

whether Mr. Shah had relevant personal knowledge. 

7 
PUBLIC DOCUMENT 

(1) the prejudice or surprise in fact of the party against whom the excluded 

witnesses would have testified; 

(2) the ability of that party to cure the prejudice; 

(3) the extent to which waiver of the rule against calling unlisted witnesses 

would disrupt the orderly and efficient trial of the case or of other cases in 

the court; 

(4) bad faith or willfulness in failing to comply with the court's order.24 

Grove Fresh Distrib., Inc. v. Ne'rv England Apple Prods. Co., 969 F.2d 552,559 (7th Cir. 1992); 

see also Summers v. Missouri Pacific R.R. Sys., 132 F.3d 599, 604 (1Oth Cir. 1997) (same four 

factors); Morfeld v. Kehm, 803 F.2d I 452, 1456 (8th Cir. 1986) (same); Meyers v. Pennypack 

Woods Home Ownership Ass 'n, 555 F.2d 894, 904-05 (3d Cir. 1977) (same), overruled on other 

grounds, Goodman v. Lukens Steel, 777 F.2d 113 (3d Cir. 1985). 

Significantly, "[a]n important final consideration is the importance of the excluded 

testimony to the proffering party's case." Astrazeneca AB v. Mutual Pharm. Co., 278 F. Supp.2d 

491, 504 (E.D. Pa. 2003) (quotation and citations omitted); see also Gibson v. National R.R. 

Passenger Corp , 176 F.R.D 190, 192 (E.D.Pa.l997) ("The importance ofthe excluded 

testimony is an important final consideration."). 

Finally, the pretrial witness disclosure rule "should be applied flexibly and pragmatically 

and should seldom be used to bar a party's use of a witness not disclosed unless bad faith is 

involved." Morfeld, 803 F.2d at 1456 (emphasis added); see also Gibson, 176 F.R.D. at 192 

("The exclusion of witnesses is an extreme sanction, however, which is not normally imposed 

absent a showing of willful or flagrant violation of court orders.") 

24 These are sometimes referred to as the Meyers factors. See Meyers, 555 F.2d at 904-

05. Notably, the four-factor test is a balancing test, so the presence or absence of any one factor 

is not dispositive. See, e.g., Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591 

(D.N.J. 1994) ("Contrary to Exxon's characterization, Meyers advocates the balancing ofthese 

four factors."). 

8 
PUBLIC DOCUMENT 

ARGUMENT 

I. The Court Should Hear Narrow Rebuttal Testimony From Mr. McDonald. 

A. Mr. McDonald's Proposed Testimony Meets the FourMFactor Balancing Test. 

First, testimony from Mr. McDonald should come as no surprise to ECM. As discussed 

above, Professor Frederick disclosed that be confirmed the validity ofGoogle's methodology 

through two interviews with Google representatives, including one with GCS Product Manager . Paul McDonald.25 Furthermore, ECM's own expert on consumer perception surveys has not yet 

testified, and the fact that Complaint Counsel would seek to rebut his expected testimony can 

hardly surprise ECM. 26 

Second, there is no prejudice to "cure.'~ ECM cross-examined Professor Frederick at 

length regarding the three specific areas of GCS' methodology that the proffered testimony will 

address. Assuming ECM had a good faith basis for its cross-examination and was not simply 

guessing about how GCS disseminates surveys, about internet ''masking" techniques, and about 

GCS ' interplay with mobile devices, then ECM is already prepared to address these issues?7 

Third, allowing no more than an hour of testimony from Mr. McDonald will not affect 

the orderly and efficient trial of this matter. The negligible possible disruption is even less 

relevant in a bench trial. See Meyers, 559 F.2d at 905 (disruption to the trial schedule caused by 

25 See CCX-865 at 3. 

26 The narrow scope of the proposed testimony also helps establish the absence of 

surprise or prejudice. See, e.g., .Grove Fresh, 969 F.2d at 559 (affirming decision that party 

would not be "surprised or prejudiced" if testimony from rebuttal fact witness was permitted 

where "the trial judge carefully limited [the witness'] testimony to rebuttal topics"). 

27 For precisely this reason, no deposition of Mr. McDonald is necessary. Furthermore, if 

ECM wanted to depose Mr. McDonald, it should have sought leave to do so no later than June 

30, when Professor Frederick explained his interview with Mr. McDonald, and certainly no later 

than ten days ago, when ECM affirmatively represented it would file a motion regarding 

Google's tes~imony (but mysteriously failed to do so). However, if the Court does permit ECM 

to depose Mr. McDonald, Complaint Counsel requests that the Court limit the deposition to two 

hours (at least twice the expected length ofhis rebuttal testimony), restrict the deposition's scope 

to the scope of the proposed testimony, and further order that the deposition take place shortly 

before Mr. McDonald testifies (to minimize travel). Additionally, any deposition would need to 

be marked confidential, for the same reasons that the proposed testimony should receive in 

camera treatment under the Commission's rules. See Protective Order (Oct. 22, 2013). 

9 
PUBLIC DOCUMENT 

allowing a previously undisclosed witness to testify was less significant in a bench trial). 

Furthermore, the Court has already allowed ECM multiple days with less than a full day's worth 

of testimony (and often much less) because ECM did not have its next witness available. To 

whatever extent adding Mr. McDonald's brief testimony lengthens this proceeding by some 

relatively small amount, ECM has no grievance. 

Finally, there is no evidence ofbad faith. As the Court is aware, ECM regularly jumps at 

the opportunity to allege Complaint Counsel's supposed bad faith, yet ECM did not allege bad 

faith in either its written meet and confer request preceding its never-filed motion about the 

Google subpoena nor the conference itself. See Citizens Bank of Batesville, Ark. v. Ford Motor 

Co., 16 F.3d 965, 967 (8th Cir. 1994) (affirming court's decision to allow unlisted witnesses in 

part because "the Court found that the record was devoid of any evidence which might indicate 

bad faith or intentional late disclosure of the witnesses"); see also Morfold, 803 F.2d at 1456 

(stating that the pretrial witness disclosure rule '"should seldom be used to bar a party's use of a 

witness not disclosed unless bad faith is involved"). 

B. Mr. McDonald's Proposed Testimony Concerns an Important Issue. 

Consumer perception issues are critical to thts case, and the parties disagree sharply 

regarding whether a significant minority of consumers believe that plastic products labelled 

"biodegradable" will biodegrade in one year or less. As the Court is aware, Professor Frederick 

performed considerable work through GCS, which makes the representativeness of the GCS 

sample a critical issue. This is why we anticipate ECM will attempt to offer evidence 

challenging GCS's representativeness through Dr. Stewart, and also why a rebuttal from Google 

on narrow issues is highly probative. Indeed, several courts have found that trial courts abused 

their discretion by excluding highly probative testimony. See, e.g., Quinn v. Consol. 

Freightways Corp., 283 F.3d 572, 579 (3d Cir. 2002) (holding that the district court abused its 

discretion in prohibiting rebuttal testimony that had the potential to provide strong support for 

plaintiffs case); Summers, 132 F.3d at 604 ("Even according appropriate deference, we find 

reversible error in this case."); Murphy v. Magnolia Elec. Power Ass 'n, 639 F.2d 232, 235 (5th 

10 
PUBLIC DOCUMENT 

Cir. 1981) (finding it was reversible etTor to refuse to allow rebuttal witness testimony in light of 

the essential nature of the evidence); see also Citizens Bank, 16 F.3d at 967 (8th Cir. 1994) 

(affirming decision to allow testimony from unlisted witness that "was relevant to the heart of 

the case''); Fed. Aviation Admin. v. Landy, 705 F.2d 624, 632 (2d Cir. 1983) (affinning district 

court decision permitting rebuttal testimony of a witness not previously listed on the 

government's witness list, that the government had indicated it would not call). Accordingly, the 

Court should permit Mr. McDonald's brief rebuttal testimony. 

II. The Court Should Hear Narrow Rebuttal Testimony From Mr. Shah. 

A. Mr. Shah's Proposed Testimony Meets the Four·~Factor Balancing Test. 

First, there is neither surprise nor prejudice. As the Court is aware, both parties have 

focused on Dr. Michel's published, peer-reviewed study since February. ECM obtained 

subpoena responses from Dr. Michel in March. In June, ECM issued a since-withdrawn expert 

report that contained more than two dozen references to Mr. Shaw, including an intricate (if 

erroneous) analysis ofhis relationship with Dr. Miche1.28 The since-abandoned report asserted 

that Dr. Michel was "corresponding with Tarang Shah ofMyers Industries since at least 2010" 

and recounted that correspondence in detail.29 Certainly, Mr. Shaw's potential testimony comes 

as no surprise to ECM. 

Second, the fact that ECM abandoned the report does not mean ECM somehow lacks 

access to the pages of communications between Dr. Michel and Mr. Shah that ECM's alleged 

expert analyzed. In fact, it is difficult to imagine a rebuttal witness that ECM is more prepared to 

examine that Mr. Shah. Third, as noted above, there is no reason to believe less than an hour of 

testimony from Mr. Shah will affect the orderly and efficient trial of this matter. Finally, there is 

no evidence of bad faith. 

28 RX-857 at 32-40 (withdrawn). 

29 Id. at 37. 

11 
PUBLIC DOCUMENT 

B. Mr. Shah's Proposed Testimony Concerns an Important Issue. 

Mr. Shah's proposed testimony is highly probative because it addresses Dr. Michel's test, 

which is the only published, peer-reviewed analysis of whether the ECM additive works. 

Significantly, because Dr. Michel conducted published study himself, he can address most of 

ECM's (weak) criticisms through his noticed expert rebuttal testimony. However, consistent 

with established scientific protocols, Dr. Michel relied on the manufacturer's representations 

concerning the test material (in this case, Meyers Industries preparation of a pot containing ECM 

additive). Because ECM has introduced testimony alleging the mismanufacture of the pot, 

rebuttal testimony from someone who personally manufactured the pot is highly probative. 

Accordingly, the Court should pennit Mr. Shah's brief rebuttal testimony. 

III. Alternatively, the Court Should Accept an Appropriate Offer of Proof. 

Alternatively, if the Court will not accept the proposed testimony in evidence, the Court 

should pennlt Complaint Counsel to preserve the excluded testimony as an offer of proof. See 

Rule 3.43(i). Pursuant to the Court's oral order this morning, we also provide the following 

written offers of proof; 

A. Mr. McDonald's Anticipated Testimony. 

Complaint Counsel anticipates that Mr. McDonald will testify, from personal knowledge, 

about the following subjects:

30 

Generally, how GCS gathers and assesses survey responses, and how it operates 

to provide a reasonably reliable sample of American consumers; 

GCS' proprietary technology allows GCS to target survey respondents for whom 

Google has inferred demographic criteria that meet those requested by the survey's author; 

GCS proprietary technology involves a dynamic algorithm that uses, among other 

things, the IP address and non-personally identifiable browsing behavior of the user, to infer that 

user's geographic location and demographic information, .respectively; 

GCS then proactively administers the survey to users whose demographic 

information is required to create a balanced survey population; 

30 We note that Complaint Counsel's ability to prepare a full and complete offer of proof 

is limited somewhat by the fact that the Court added the requirement of including a written offer 

ofproofless than three hours ago, and that we have not yet heard Dr. Stewart's testimony. 

12 
PUBLIC DOCUMENT 

GCS also has additional proprietary features to validate the reliability of its 

product, including measures to cross-check and validate the algorithm· s ability to infer 

demographic information; 

GCS reports survey data for which the user's demographic information cannot be 

ascertained as "unknown." This includes users who employ various technologies to intended to 

mask demographic characteristics, as well as circumstances in which GCS lacks sufficient 

infonnation to infer the user's demographic information; 

GCS disseminates surveys such as Dr. Frederick's in a manner designed to create 

demographic balance that reasonably reflects the population of American internet users at large. 

GCS would not post a survey such as those Dr. Frederick conducted on the website of only one 

content provider. Rather, GCS posts surveys on multiple partner websites that provide widelyviewed content, such as many of the country's leading news, sports, and entertainment sites; and 

GCS has always been available on certain tablet devices, and earlier this year, 

GCS made it surveys available to users of certain mobile ( cellphone-type) internet devices as 

welL 

B. Mr. Shah's Anticipated Testimony. 

Complaint Counsel anticipates that Mr. Shah will testify, from personal knowledge, that 

as a Myers Industries employee, he manufactured the ECM Plastic test material provided to Dr. 

Michel in accordance with ECM's instmctions. 

CONCLUSION 

For the foregoing reasons, the Court should hear limited rebuttal evidence from two 

proposed witnesses. 

Dated: August 25,2014 Respectfully submitted, 

· Kathenne Johnson {kjohnson3@ftc.gov) 

? J-6nathan Cohen (jcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

13 

600 Pennsylvania Ave., N.W. M-81028 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; 

Fax: 202-326-2558 
PUBLIC DOCUMENT 

MEET AND CONFER CERTIFICATION 

Complaint Counsel hereby certifies that we conducted a meet and confer with ECM's 

counsel on the issues raised herein via electronic mail, and additionally through an in p erson 

meeting with ECM' s counsel this morning. 

DATED: August 25, 2014 

14 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certifY that on August 25, 20 14, I caused a true and correct copy of the foregoing 

to he served as follows: 

One electronic copy to the Office of the Secretary, one hard copy, and one copy through the 

FTC's e-filing system: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One .electronic copy and one hard copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

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

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

EmaU: jemord@emord.com 

Eric J. Awerbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com 

Date: August 25,2014 

15 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Kaili"6·i1i n (kjohnson3@ftc.gov) 

aihan Cohen (jcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747 

Fax; 202-326-2558 
Exhibit A 
SUBPOENA AD TESTIFICANDUM 

ADJUDICATIVE HEARING 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuantto Rule 3.34(a), 16 C.F.R. § 3.34(a) (2010} 

Paul McDonald 

c/o Google, Inc. 

1600 Amphitheatre Parkway 

Mountain View; CA 94043 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to attend and give testimony at an adjudicative hearing, at the date and time specified In 

Item 5, and at the request of Counsel listed in Item 8, in the proceeding described in Item 6. 

3. PlACE OF ADJUDICATIVE HEARING 4. YOUR APPEARANCE WILL BE BEFORE 

The Chief Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Room 532 

Washington, DC 20580 

E!. SUBJECT OF PROCEEDING 

In re: ECM Biofilms, Inc., Docket No. 9358 

7. ADMINISTRATIVE LJ!o.W JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

5. DATE AND nME OF ADJUDICATIVE HEARING 

8. COUNSEL AND PARTY ISSUING SUBPOENA 

Complaint Counsel 

Katherine Johnson (202} 326-2185 

Jonathan Cohen {202) 326-2551 

Arturo DeCastro (202) 326-2747 

DATE SIGNED SIGNATURE OF C~ISSt:J ING-iUBPOENA 

8/13/2014 ,.,.-

/ / 

APfEARANCE 1 

. . TRAVEL EXPENSES 

The delivery of this subeg_ena to you by any method The Commission's Rules of Practice require that fees and 

prescribed by the Commission's Ru!es of Practice is mileage be pald by the party that requested your 

legal service and may subject you to a penalty appearance. You should present your clatm to Counsel 

imposed by law for failure to comply. listed tn Item 8 for payment. If you are pennanently or 

MOTION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any 

motion to limit or quash this subpoena must comply 

with Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), 

and in particular must be fiied within the earlier of 10 

days after service or the time for compliance. The 

original and ten copies of the petition must be flied 

befOre the Administrative Law Judge and with the 

Secretary of the Commission, accompanied by an 

affi(favit of service of the document upon counsel 

listed in Item 8, and upon all other parties prescribed 

by the Rules of Practice. 

FTC Form 70·0 (rev. 5114) 

temporarily living somewhere other than the address on 

this subpoena and it would require elCcessive travel for 

you to appear, you must get prior approval from Counsel 

listed In Item 8. 

A copy of the Commission's Rules of Practice is available 

online at b.1tQ;/&itJ.yJFTC.B.YJesoP•a..QtiQ.e. Paper copies are 

available upon request. 

This subpoena does not requlre approval by OMB under 

the Paperwork Reduction Act of 1995. 
RETURN OF SERVICE 

f her&by certify thst a duplicate original of the within 

subpoena wes duty sei'V8d: (end tn. nwt1tot1 uJedi 

(' In pefS(){J. 

(' by registered maif. 

(' by leaving copy at princlplll office or place of business, to wit 

on the person named herefn on; 

(Manll1, del'. 1111c1 yell) 

(Oftlciallitle) 
Exhibit B 
Decastro, Arturo 

t=rom: 

Sent 

To: 

Cc: 

Subject: 

Counsel, 

Eric Awerbuch <EAwerbuch@ernord.com> 

Thursday, August 14, 2014 10·12 AM 

Johnson, Katherine; Cohen, Jonathan; Decastro, Arturo 

Peter Arhangelsky; Jonathan Emord 

Subpoena to Google 

l called this morning and left separate voicemails for each of you. We would like to speak this morning to discuss the 

subpoena you apparently issued to Google fast night. 

That subpoena is improper under the Commissron's rules, the scheduling order, and Judge Chappell's instructions 

regarding rebuttal witnesses. It is inconsistent with your statement on the record that "ft]he government does rest 

with of course the reservation to call rebuttal expert that we've identified." 8/12/14 Tr. at 130:17-19. Among other 

critl<::af defidencies, you made no attempt to confer on this matter before issuing the subpoena. We disagree that you 

can unilaterally add a rebuttal fact witness without leave of court, particularly one that has never been listed in your 

witness lists, and would serve only to support your case-in-chief, which you have dosed. 

Because of the urgency of this matter, should you not provide us with proof that you have withdrawn the subpoena by 1 

PM EST today, we will seek relief from the Court promptly. Urgent resolution of this matter is essential to prevent 

prejudice stemming from this unfair surprise, unnecessary costs and burdens on non-parties, and to promote judicial 

economy. Please feel free to calf me directly on my cell phone to discuss: (248) 568-1856. 

Thank you, 

Eric Awerbuch, Esq. l EMaRD & AsSOCIATES, P.C. I 3210 S. Gilbert Rd., Ste. 4 l Chandler, AZ 85286 

Firm: (602) 388-8899 I Direct: (602) 388-8902 I Facsimile: (602) 393.,.4361 I www.emord.com 

NOTICE: This is a confidential eommunlcation Intended for the recipient listed above. The content of this communiCation is protected frotl'l disclosure by the 

attorney-client prhlllege and the woric product doctrine. If you are not the intended recipient, you should treat this communication as strictly confidential and 

pro11lde ltto the person Intended. Duplication or distribution of this communication is _prohibited by the sender. If this communication has ~en sent to you in error, 

please notify tile sender and then Immediately destroy the document. 

1