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 

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COMPLAINT COUNSEL'S MOTION TO CERTIFY SCHEDULING ISSUES TO THE 

COMMISSION AND REQUEST FOR INTERIM RELIEF 

Due to Respondent's calculated foot-dragging, Complaint Counsel cannot develop the 

record properly in the limited time remaining before trial. Therefore, Complaint Counsel has no 

choice but to ask the Court to: (1) certify to the Commission whether, pursuant to Rule 

3.21(c)(1), it should move the evidentiary hearing back three months to allow Complaint 

Counsel the time minimally necessary to complete the discovery that a full and fair record 

requires; (2) issue findings and recommendations supporting this change; and (3) pursuant to 

Rule 3.21(c)(2), reset certain discovery deadlines to provide interim relief. 

As of this filing, Respondent produced documents only a few days ago that it should have 

produced in December, and which it promised to produce in February. Additionally, as the 

Court correctly noted, "a 'key issue' in this case is the nature of Respondent's representations to 

its customers." Order (Mar. 13, 2014) at 5 (quoting Order (Jan. 10, 2014)). After overcoming 

two motions to dramatically limit customer subpoenas, we can finally serve customers today 

(March 18), 1 which leaves barely more than two weeks to receive responses, review them, 

schedule depositions as necessary, take those depositions, and otherwise complete fact discovery. 

This is impossible-which is precisely what Respondent intended. Furthermore, both sides 

1 Although the Court issued its order on Thursday, consistent with our agreement in early 

December, we afforded Respondent a brief period so that it could contact its customers first. 

See Complaint Counsel Exhibit ("CCX") A ,-r 2. 
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would provide the fruits of this discovery to their experts, who need time to analyze it. Again, 

this cam1ot happen without resetting the tria1.2 

Finally, there is a significant public policy issue at stake. The Court's ability (and, 

ultimately, the Commission's ability) to adjudicate important matters correctly through Part III 

depends on the development of a full record. If the Court (and the Commission) allow ECM's 

deliberate delays to affect this proceeding's outcome, then every future respondent will follow 

ECM's roadmap. 

BACKGROUND 

A. Dilatory Tactics 

From the very beginning, ECM failed to abide by the Commission's discovery rules, 

thereby effectively thwarting our ability to prosecute this case expeditiously. Although its 

customers have critical knowledge regarding ECM's representations to them, ECM refused to 

provide a customer list as part of its mandatory initial disclosures.3 ECM then refused to 

provide its customer list in response to interrogatories, and instead sought a protective order to 

limit severely Complaint Counsel's ability to contact its customers.4 

After the Court rejected ECM's motion,5 ECM produced an alleged customer list-but 

one it knew was inadequate. Given ECM' s "sophisticated customer" defense, Complaint 

Counsel sought discovery from a representative sample of customers, including those who 

purchased product at different times and in different amounts. Despite the fact that the Court 

2 As discussed further below, simultaneously conducting fact discovery, expert discovery, 

and trial preparation is impossible. Expert discovery depends on fact discovery, and most trial 

preparation cannot begin until discovery closes. 

3 See Rule 3.31(b)(1); CCX-A:l. 

4 See CCX-A~ 3, ECM Mem. (Dec. 13, 2013). 

5 See Order (Jan. 10, 2014) at 6 ("Respondent's assertion that disclosure ofECM's 

customer list will inevitably result in a devastating loss of business is not sufficiently supported 

by the facts presented."). Additionally, ECM argued that its "sales representations ... which are 

at issue in this proceeding, do not vary by customer." Id. at 4. ECM abandoned this position 

only after its CEO admitted that, its sales representations do, in fact, vary based on what 

customers ask. See Complaint Counsel ("CC") Mem. (Feb. 28, 2014) at 3. 

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concluded already that ECM's objections to producing its revenues per customer were 

''unpersuasive,"6 ECM's customer list omitted this critical infonnation. 7 

After Complaint Counsel asked for this infom1ation again, ECM produced a list of 

revenues from numbered entities, but without any way to connect the numbers to specific 

customers. 8 ECM's gi1mnick forced Complaint Counsel to seek relief from the Court, affording 

ECM an opportunity to relitigate its objections to producing revenue infonnation.9 ECM lost, 

but continued to play the same game. Specifically, ECM filed a "second motion for a protective 

order directed at limiting Complaint Counsel's contact with ECM's customers."10 

Unsurprisingly, ECM lost again, but not before delaying discovery by approximately another 

monthY Even now, ECM has kept its customer information opaque. On different occasions, 

ECM has identified three different numbers of "current" customers, 12 which slowed our ability to 

develop a representative sample. 

Worse, ECM' s approach to the customer list looks generous when compared with its 

document production tactics. Complaint Counsel served discovery requests on November 27, 

three business days after discovery began, and ECM should have produced documents 30 days 

laterY In the interim, and in early January, we attempted to negotiate ways to narrow our 

6 Order (Jan. 10, 2014) at 7. 

7 CCX-A~ 4. 

8 See Order (Feb. 4, 2014) at 2 ("The Revenues List, however, does not identify revenue 

by customer name, and the Customer List does not contain customer numbers. Thus, there is no 

way to tie the revenues figures disclosed to particular identified customers."). 

9 See id. at 4 ("Respondent's attempt in its Opposition to the instant Motion to 'relitigate' 

the discoverability of customer-related revenue information is rejected."). 

10 Order (Mar. 13, 2014) at 2. At various times, ECM offered to allow customer 

discovery in severely limited fashion, and always with the key restriction that Complaint Counsel 

not communicate with those customers that represent the overwhelming majority if its business. 

CCX-A~5. 

11 Id. at~ 6. 

12 The "customer list" ECM initially produced had one number of current customers. 

ECM's CEO later submitted a declaration providing a substantially different number. ECM's 

counsel subsequently provided a third number. See CC Mem. (Feb. 28, 2014) at 2-3. 

13 See Rule 3.37(b); CCX-A~ 7. 

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requests and thereby expedite discovery, but ECM provided vague and sometimes contradictory 

infonnation about how it maintained its documents (which impeded the dialogue ). 14 

Remarkably, ECM also asserted that only its CEO was qualified to review ECM's documents 

and cull privileged material, and because he had to review (personally) every document 

produced, even a rolling production would take until mid-March to complete. 15 Unwilling to 

accept a rolling production that would conclude less than three weeks before fact discovery 

closed (and that was subject to other limits as well)/ 6 Complaint Counsel moved to compel on 

January 23. 

After the filing, ECM ultimately agreed to tenns and a production schedule that was 

roughly equivalent to the relief the pending motion sought. Complaint Counsel agreed to 

withdraw its motion, which we did promptly on February 7. 17 In exchange, ECM' s counsel 

provided us with a signed letter on finn letterhead committing ECM to complete its production 

no later than "February 21."18 

On February 20, thirteen days after we withdrew our motion, counsel informed us that 

they would breach their agreement. 19 This disclosure was provided late in the day on February 

20, after Complaint Counsel had spent several days at ECM's offices taking depositions.20 ECM 

14 Id. at~ 8. 

15 I d. at~ 9. At various times, ECM attributed this bizarre position to different alleged 

concerns: (1) only the CEO, an attorney with a lapsed bar license, could make privilege 

determinations, apparently due to his unique familiarity with the material; (2) third parties (such 

as contract attorneys or litigation support firms) cannot be trusted with ECM' s proprietary 

information; and (3) the alleged cost. See id. at~ 10. With respect to cost, we note that-despite 

its periodic claims ofpoverty-ECM has engaged five experts, see CCX-A:2, along with its 

three outside attorneys. 

16 There was extensive dialogue between the parties, and multiple points of disagreement. 

Most significantly, ECM sought to produce smmnaries of its communications with customers, 

rather than the communications themselves. CCX-A~ 11. 

17 See CC's Withdrawal ofits Motion To Compel (Feb. 7, 2014). 

18 CCX-A:3 (ECM's counsel's emphasis). 

19 CCX-A~ 12. 

20 Id. at~ 13. The deposition ofECM's CEO was scheduled to begin at 9:00AM, see 

CCX-A:4, but he and his attorneys arrived three hours late, CCX-A~ 14. 

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stated that it would not complete its production before March 14 (and that, somehow, it did not 

realize it would breach its agreement until hours before the deadline). ECM ultimately finished 

producing documents by March 14 (albeit under Court order).21 

The production itself almost certainly violates Rule 3.3 7( c )(2), which, as relevant here, 

required ECM to produce electronic data "in a form in which it is ordinarily maintained or a 

reasonably usable fonn." Contrary to this rule: 

• ECM disclosed emails and attachments to those emails separately. By way of 

example, ECM sent many customers and potential customers logos, 

certificates, fliers, brochures and other marketing materials via email 

attachments? ECM produced emails to particular customers, and various 

apparent email attachments-but with no easy way to detennine which email 

recipients received which attachments.23 This is severely prejudicial, because 

it impedes our ability to detennine how and when ECM provided customers 

with the "means and instrumentalities" (i.e., certificates and logos) to deceive 

consumers. Furthermore, producing separate sets of emails and attachments is 

not producing data in a "reasonably usable form," nor does it seem likely that 

ECM "ordinarily maintains" all emails separately from their attachments. 

• Rather than produce documents in Concordance-ready load files (or another 

standard litigation format), ECM produced documents in giant PDFs?4 For 

instance, ECM produced certain documents in one 20,000-page PDF, which is 

too large to search easily, and which will require an extensive (and very timeconsuming) effort by litigation support to refashion into searchable, databaseloadable pieces.25 It is unlikely that ECM actually maintains its data this way, 

which is anything but "reasonably usable." 

• ECM failed to produce the overwhelming majority of documents in native 

fonnat, which makes searching them significantly more difficult. 26 ECM 

maintains a substantial portion of its documents in an MS Access database 

21 See Order (Mar. 11, 2014). 

22 CCX-A ,-r 15. 

23 See, e.g., CCX-A:5 (example of an email produced without attachments that apparently 

contained representations); CCX-A:6 (Complaint's Counsel's sunnise regarding the probable 

attachments, found elsewhere ECM's production). Because ECM filed to produce many 

documents before its employees' depositions, we could not ask them about many of the 

attachments potentially at issue. 

24 CCX-A at ,-r 16. 

25 Id. at,-r 17. 

26 Id. at ,-r 18. 

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(which contains native material),27 but produced almost everything in PDF 

form-despite our request that we receive documents in native fonnat. 28 

Native files contain metadata, but ECM~roduced PDF documents sanitized or 

scrubbed (i.e., with metadata removed). This makes verifyincf when certain 

documents were created (or accessed) difficult or impossible.3 Whether "in a 

fonn in which it is ordinarily maintained or a reasonably usable fonn," the 

rules require ECM to produce its metadata (which Complaint Counsel 

requested). 31 

Furthennore, ECM's rolling production disclosed documents in chronological order, with the 

most recent (and, thus, likely most probative) documents last.32 

Finally, ECM slowed the process in other ways. ECM designated essentially everything 

it produced as confidential, 33 thereby requiring more cumbersome treatment of documents and 

filings (indeed, ECM sought to keep its own filings confidential even when they plainly are 

not).34 ECM also forced Complaint Counsel to address a frivolous sanctions motion alleging that 

27 Indeed, the failure to preserve documents in native format (and to preserve related 

metadata) would raise other questions, as litigation with the FTC has been reasonably 

foreseeable since August 30, 2011, CCX-A:7, when the FTC disclosed its investigation ofECM. 

See John B. v. Goetz, 531 F .3d 448, 459 (6th Cir. 2008) ("As a general matter, it is beyond 

question that a party to civil litigation has a duty to preserve relevant information, including ESI 

[Electronically Stored Information], when that party has notice that the evidence is relevant to 

litigation or should have known that the evidence may be relevant to future litigation."); see also 

Clarke v. Washington Metro. Area Transit Auth., 904 F. Supp. 2d 11, 19-20 (D.D.C. 2012) 

("Once a party anticipates that it will be subject to litigation, the party has a duty to preserve any 

evidence that may be potentially relevant.") (citing Shepherd v. American Broad. Cos., 62 F .3d 

1469, 1481 (D.C. Cir. 1995)). 

28 CCX-A ,-r 19. Although ECM refused to provide documents in the format we 

requested, Complaint Counsel responded to ECM's document requests in the fonnat it requested. 

Id. at ,-r 20. We ultimately agreed to accept documents from the MS Access database in PDF 

format as part ofECM's offer that induced us to withdraw our motion to compel by promising 

the documents sooner, see CCX-A:3, but, as noted supra, at 4, ECM breached that agreement. 

29 CCX-A ,-r 21. 

3

° CCX-A ,-r 22. 

31 CCX-A:8 at 1. 

32 CCX-A ,-r 23. This is not a minor point because ECM changed its key qualified claim 

when the Commission revised the Green Guides in October, 2012, and again almost a year later, 

right after the Commission issued the Complaint. Id. at ,-r 24. Thus, documents prepared over 

the past eighteen months address ECM's current claims more directly than earlier-prepared 

material ECM disclosed in January and February. Id. at ,-r 25. 

33 Id. at ,-r 26. 

34 See, e.g., Order (Jan. 14, 2014) at 4 ("Respondent seeks to shield from disclosure the 

very fact that Complaint Counsel has asked for Respondent's customer list and the fact that 

Respondent has refused to provide the names of its customers. These facts do not constitute 

'confidential information."'). 

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Complaint Counsel improperly failed to tum over a document received from a third party less 

than two business days earlier. 35 

B. The Existing Schedule 

As relevant here, the deadline to serve subpoenas expired on February 28, about two 

weeks before (on March 13) Complaint Counsel overcame ECM's second motion to limit these 

subpoenas. 36 As the schedule presently stands, practically speaking/7 

we cannot depose any 

ECM customers because fact discovery closes on April3. 38 Other upcoming deadlines we likely 

cannot meet because ofECM's delays include Complaint Counsel's expert reports, due April16. 

Additionally, on April 24, we must provide our final proposed witness and exhibit lists (with 

deposition designations), the basis for admissibility of each proposed exhibit, and a summary of 

the testimony of each witness. 39 Expert discovery closes a few weeks later, on May 16, and trial 

begins on June 18.40 

LEGAL STANDARD 

Under Rule 3.21 (c), given good cause, the Commission may reset the trial date and the 

Court may reset scheduling deadlines. "Good cause exists when a deadline in a scheduling order 

'cannot be met despite the diligence of the party seeking the extension."' In the Matter of 

35 See CC Opp. (March 10, 2014). ECM also urged sanctions in part because one 

particular attorney involved failed to show sufficient "remorse." ECM Filing (March 11, 2014) 

at 1. 

36 See Scheduling Order (Nov. 21, 2013). 

37 In theory, we could provide customers with arguably inadequate notice of their 

depositions, hope that they do not move to quash their subpoenas, and depose them without the 

benefit of their document subpoena returns. Such an alternative is unfair to Complaint Counsel, 

to the customers, and to the process itself. 

38 At various times, ECM offered to move discovery deadlines if we refrained from 

serving customers while the Court evaluated ECM' s successive motions to block this discovery. 

As a courtesy, we obliged. Unfortunately, however, given ECM's breach of its written, signed 

agreement to produce documents by a date certain, we must file this motion no matter what 

accommodations ECM suggests it will accept voluntarily. Furthermore, only the Commission 

can move the trial date. See Rule 3.21 ( c )(1 ). 

39 See Scheduling Order (Nov. 21, 2013). 

40 See id. 

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Gemtronics, Inc., No. 9330, 2009 FTC LEXIS 193, *1 (Feb. 17, 2009) (quoting In re Chi. Bridge 

& Iron Co., 2002 FTC LEXIS 69, *2 (2002)); see also In the Matter ofR.J Reynolds Tobacco 

Co., No. 9285, 1998 FTC LEXIS 180, *5 (Sept. 30, 1998) (denying request for extension oftrial 

date in part because an "extension of more than ten months had already [been] granted"); In the 

Matter of Automotive Breakthrough Sciences, Inc., Nos. 9275-77, 1996 FTC LEXIS 410, *1-*3 

(Sept. 11, 1996) (denying third request to reset the trial "[a]fter two extensions of the trial date" 

had been granted already, and because the party seeking a third extension faced a "predicament 

wholly of its own making"). 

ARGUMENT 

For two reasons, there is good cause to grant the relief requested. First, although there is 

no requirement that a party act intentionally to justify resetting the trial, the record here 

establishes deliberate delay. Second, even if Respondent were blameless (which it is not), the 

existing schedule is unworkable and contrary to the public interest. 

I. The Record Establishes Intentional Delay. 

A. Intentional Delay Is the Only Reasonable Inference. 

Although one might fairly attribute some specific discovery issues to inadvertence or 

circumstances beyond ECM's control, the totality of the record makes willful delay the only 

reasonable way to interpret ECM's overall conduct. First, breaching a written, signed agreement 

to produce documents by a date certain is hard to explain, but ECM' s communication regarding 

this issue is even more important. Specifically, as explained supra, at 4, ECM waited until hours 

before the deadline to disclose that it would breach its agreement.41 This late disclosure 

prejudiced Complaint Counsel (by delaying our ability to seek relief), and it strongly implies that 

this incident was not a good faith miscalculation. 

41 ECM's counsel executed the agreement and had a duty to ascertain much earlier 

whether his client was likely to comply. It strains credulity to accept that ECM (or its lawyers) 

only became aware hours before the production was due that ECM needed three more weeks to 

finish. 

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Second, the notion that ECM's CEO needed to review every potentially responsive 

document personally is absurd. Maybe he reviewed them all (we have no idea),42 but he could 

have asked his attorneys for help, or engaged a litigation support firm. 43 ECM cannot excuse its 

months-late production by insisting upon a bizarre document review process that turns entirely 

on one individual. 

Third, producing a customer list with only customer names (no numbers) and a revenue 

list with only customer numbers (no names) was bad faith, 44 not a sincere attempt to comply with 

the Court's ruling that ECM disclose "revenues by customer."45 As the Court observed, ECM 

could have drafted a response to an outstanding interrogatory that correlated the two lists,46 or 

produced the information in some other useful form. Its failure to do so is telling. 

Finally, the fact that ECM filed a second motion to limit our communications with 

customers further reveals ECM' s motive. ECM knows the critical importance of discovery from 

its customers (indeed, the Court held that "a key issue in this case is the nature of Respondent's 

representations to its customers").47 Even so, ECM managed to block this discovery for nearly 

42 Although there is reason to doubt the CEO's representations, even when made under 

oath. See, e.g., CC Mem. (Feb. 28, 2014) at 3-4 (noting substantial discrepancy between CEO's 

declaration and deposition testimony); CC Mem. (Dec. 30, 2013) at 1, 5-6 (noting substantial 

discrepancy between CEO's declaration submitted in support of a motion and his statement to 

the media). 

43 As noted above, ECM can afford three attorneys and five experts. See supra at 4 n.15. 

Additionally, financial information ECM submitted debunks any notion that ECM lacked the 

resources to hire anyone to help review documents. See CC Mem. (Feb. 28, 2014) at 6 n.6. 

44 It is beyond dispute that "[l]itigants are expected to act in good faith in complying with 

their discovery obligations[.]" Johnson v. JB. Hunt Transp., Inc., 280 F.3d 1125, 1132 (7th Cir. 

2002); see also McLeod, Alexander, Powel & Apffel, P. C. v. Quarles, 894 F .2d 1482, 1486 (5th 

Cir. 1990) ("Counsel, as officers of the court, have an obligation to assist in the discovery 

process by making diligent, good-faith responses to legitimate discovery requests."); Akins v. 

State Farm Mut. Auto. Ins. Co., No. 10-CV-12755, 2011 U.S. Dist. LEXIS 82806, *3 (E.D. 

Mich. July 28, 2011) ("The parties have a duty to discharge their discovery obligations in good 

faith."); New Medium Techs. LLC v. Barco, NV, 242 F.R.D. 460, 464 (N.D. Ill. 2007) 

("[L]awyers have a duty to act in good faith in complying with their discovery obligations and to 

cooperate with and facilitate forthright discovery."). 

45 See supra at 2-3. 

46 See Order (Feb. 4, 2014) at 5 ("Complaint Counsel has demonstrated that Respondent 

failed to fulfill its obligation to answer fully Complaint Counsel's Interrogatory 2."). 

47 Order (Mar. 13, 2014) at 5 (quotation omitted). 

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four months (specifically, from November 25-when its initial disclosures should have included 

a customer list-until March 13, when the Court dispatched ECM's second motion on the issue). 

Whether these facts are viewed in isolation or along with the full history recounted above, they 

lead inexorably to the conclusion that ECM intentionally delayed discovery. 

B. ECM's Likely Counterarguments Are Meritless. 

Complaint Counsel expects ECM to assert several baseless arguments in response. 

Initially, ECM will highlight the large volume of infonnation it produced. In fairness, ECM 

ultimately produced a significant number of documents. ECM also eventually produced a usable 

customer list, including revenues by customer. The issue, however, is not how many documents 

ECM produced, but when they were produced. Likewise, the issue is not whether ECM 

disclosed other critical information, but when. That ECM eventually complied is irrelevant to 

whether it created the prejudicial scheduling bind that now exists-and it did. 

Additionally, ECM may ask for sympathy or forgiveness (or both) as a small company. 

Small businesses, however, are not exempt from the Commission's rules or the discovery 

obligations they create. Law and regulation detennine a finn's obligations, not its size. 

Furthennore, even if a certain businesses should receive somewhat greater leeway in some 

respects, that does not justify the extraordinary delay ECM caused. Nor should Complaint 

Counsel (or the process) be prejudiced because ECM refused to follow the Commission's rules 

or its own attorneys' agreement. 

Last, ECM may attempt to de facto moot this motion by purporting to agree to at least 

some of the relief sought. This is problematic in several respects. First, only the Commission 

can move a trial date.48 Second, given ECM's prior breach of its counsel's agreement, it is 

unreasonable to ask us to rely on any commitments ECM or its counsel make. Third, as 

discussed below, even if the Court or the Commission force ECM to accept a modified schedule 

48 See Rule§ 3.21(c)(1). 

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that involves simultaneous fact discovery, expert discovery, and trial preparation, merging these 

tasks is impossible because the second cannot be completed before the first, and so forth. 49 

II. The Existing Schedule Is Unworkable and Contrary to the Public Interest. 

A. The Existing Schedule Is Impossible To Meet. 

No amount of effort on nights, weekends and holidays can make the existing schedule 

work because, as it now stands, the schedule is impossible (unless neither party takes any 

additional fact discovery, including any discovery from ECM's customers). For instance: 

• Scheduling customer depositions before obtaining responses to document 

subpoenas is irresponsible, and-assuming both extensive cooperation from 

third parties and no motions to quash-we can expect responses to document 

subpoenas in early April. 5° But fact discovery closes on April3. 51 

• Even ifwe noticed the depositions of a selection ofECM's customers now, 

without the benefit of potentially critical documents, it is unlikely any 

significant number of depositions could occur before April 3, and even those 

that did occur arguably would place an unreasonable burden on third party 

customers with respect to scheduling and preparation. 

• Even if we managed to take some modicum of discovery from ECM's 

customers by April 3, we cannot analyze that information, provide it to our 

experts, and have them complete their own analyses before their reports are 

due less than two weeks later (on April 16). 52 

• Even if we managed to take a meaningful amount of discovery from ECM' s 

customers by April 3 (which we cannot), and even if our experts could do 

everything necessary by April16 (which they cannot), we cannot (1) prepare a 

final witness list; (2) prepare a final exhibit list; (3) prepare deposition 

designations; ( 4) provide the basis for admissibility for each proposed exhibit; 

and (5) summarize the testimony of each potential witness in the eight days 

between April 16 and April 24, when these five items are due. 53 

Most important, it solves nothing to reshuffle deadlines so that fact discovery, expert 

discovery, and trial preparation occur simultaneously. Although it is commonplace for small 

amounts of discovery to take place past deadlines to address isolated situations, this circumstance 

49 See infra at 12. 

50 The subpoenas have a March 31 return date, but it is likely that most companies will 

request at least a short extension. 

51 Scheduling Order (Nov. 21, 2013). 

52 See id. 

53 See id. 

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is dramatically different. What lies ahead is conducting the majority (and the most important 

part) of fact discovery, all of expert discovery, and all trial preparation simultaneously. Because 

effective trial preparation cannot occur before all discovery closes, and because expert analyses 

depend on information learned through fact discovery, these three phases simply cannot occur at 

once. In short, we cannot meet the existing deadlines even with extraordinary effort, and 

deferring those deadlines solves little unless the Commission also moves the trial date. 

B. The Existing Schedule Is Contrary to the Public Interest. 

The public interest requires a record sufficiently developed so that the Court, and 

ultimately the Commission, can apply their expertise in a mam1er that reaches the correct result. 

Unfortunately, failing to reset the trial date ensures that critical documents will never be obtained 

(let alone reviewed), important depositions will never be taken, and experts will opine without 

the benefit of important fact discovery. The Court and the Commission may have to decide this 

case with little or no evidence regarding the customers who received ECM' s representations, and 

deployed the means and instmmentalities we allege ECM provided to deceive consumers. This 

is simply not how Part III litigation should function. 

Equally important, ifECM successfully contorts the process through deliberate delay, 

future Part III respondents will follow ECM' s precedent. Neither the Court nor the Commission 

should allow this to occur. 

CONCLUSION 

For the reasons explained above, we ask the Court to: (1) certify to the Commission 

whether it should move the evidentiary hearing back three months to allow Complaint Counsel 

the time minimally necessary to complete discovery; (2) issue findings and recommendations 

supporting that action; and (3) reset certain discovery deadlines to provide interim relief. With 

respect to interim relief in particular, we ask the Court to extend all deadlines from Febmary 28 

through April 30 by 45 days. This should give the Court and the Commission sufficient time to 

act, while enabling the parties to continue conducting fact discovery expeditiously. 

12 
Dated: March 18, 2014 

13 

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Respectfully submitted, 

erit ohnson (kjohnson3@ftc.gov) 

l an Cohen (jcohen2@ftc.gov) 

isa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
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MEET AND CONFER CERTIFICATION 

'TI1e undersigned counsel certifies that Complaint Counsel conferred with Respondent's 

counsel in a good faith effort to resolve by agreement the issues raised by Complaint Counsel's 

Motion To Certify Scheduling Issues to the Commission and Request for Interim Relief. On 

March 18,2014, Complaint Counsel (Katherine Johnson, Jonathan Cohen, and Elisa Jillson) and 

Respondent's Counsel (Jonathan W. Emord and Lou Caputo) communicated by telephone 

regarding the issues this motion raises, but were unable to reach an agreement. Respondent's 

counsel indicated that they might agree to certain aspects of the relief sought herein and, if so, 

they would identify those points of agreement in ECM's response. 

Dated: March 18,2014 

14 

Katb · ohnson johnson3@ftc.gov) 

Jo. an Cohen Gcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 PelU1sylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

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 

[PROPOSED] ORDER 

GRANTING COMPLAINT COUNSEL'S MOTION TO CERTIFY SCHEDULING 

ISSUES TO THE COMMISSION AND REQUEST FOR INTERIM RELIEF 

This matter having come before the Chief Administrative Law Judge on March 18, 2014, 

upon a Motion by Complaint Counsel, and having considered all supporting and opposing 

submissions, and for good cause appearing, it is hereby ORDERED that Complaint Counsel's 

Motion Is GRANTED. 

The Court CERTIFIES to the Commission the question of whether, pursuant to Rule 

3.21(c)(1), the Commission should reset the evidentiary hearing from June 18, 2014 to 

September 18, 2014, to allow sufficient time to complete discovery. The Court finds that good 

cause exists for this relief, and recommends to the Commission that it reset the trial date to 

September 18, 2014. 

It is FURTHER ORDERED that, pursuant to Rule 3.21(c)(2), all deadlines from 

February 28 through April30 in the Court's November 21, 2013 Scheduling Order are extended 

by 45 days, without prejudice to either party's right to seek additional or modified relief if the 

Commission has not resolved the certified question by May 1, or if other circumstances develop 

that constitute good cause for further relief. 

SO ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 18, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

One electronic copy through the FTC's e-filing system, and one electronic courtesy copy to the 

Office of the Secretary: 

DonaldS. Clark, Secretary 

Federal Trade Comm1ssion 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy and one paper courtesy copy to the Office of the Administrative 

Law Judge: 

The Honorable D. Michael Chappell 

Chief 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 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

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

document that is available for review by the parties and the adjudicator. 

Date: March 18, 2014 

16 

ather" olmson (kjohnson3@ftc.gov) 

Jo an Cohen (jcohen2@ftc.gov) 

·sa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 PennsylvaruaAve., N.W. M-8102B 

'Vashington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) PUBLIC DOCUMENT 

 ) 

EXHIBITS IN SUPPORT OF 

COMPLAINT COUNSEL’S MOTION TO CERTIFY SCHEDULING ISSUES TO THE 

COMMISSION AND REQUEST FOR INTERIM RELIEF 
Complaint Counsel 

Exhibit A 

CCX-A
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 

DECLARATION OF JONATHAN COHEN IN SUPPORT OF 

COMPLAINT COUNSEL'S MOTION TO CERTIFY SCHEDULING ISSUES TO THE 

COMMISSION AND REQUEST FOR INTERIM RELIEF 

In accordance with 28 U.S.C. § 17 46, I declare under penalty of pe~ury that the following is 

true and correct: 

1. I am over 18 years of age, and I am a citizen of the United States. I am employed by 

the Federal Trade Commission ("FTC") as an attorney in the Division of Enforcement in the 

Bureau of Consumer Protection. I am an attorney of record in the above-captioned matter, and I 

have personal knowledge of the facts set forth herein. 

2. Consistent with our agreement in early December, we afforded Respondent a brief 

period so that it could contact its customers first. 

3. EOVI refused to provide its customer list in response to interrogatories, and instead 

sought a protective order to limit severely Complaint Counsel's ability to contact its customers. 

4. ECM's customer list omitted revenues by customer. 

5. At various times, ECM offered to allow customer discovery in severely limited 

fashion, and always with the key restriction that Complaint Counsel not communicate with those 

customers that represent the overwhelming majority if its business. 

6. EOVI lost its second motion to limit Complaint Counsel's ability to contact 

customers, but EOVI's second motion delayed the process by approximately one month. 

7. Complaint Counsel served discovery on November 27, three business days after 

discovery began. 

8. After serving discovery on November 27, and through early January, we attempted 

to negotiate ways to narrow our requests and thereby expedite discovery, but ECM ,rrovided vague 

and sometimes contradictory information about how it maintained its documents (.which impeded 

the dialogue). 

9. E OVI asserted that only its CE 0 was qualified to review E CM' s documents and cull 

privileged material, and because he had to review (personally) every document produced, even a 

rolling production would take until mid-March to complete. 
PUBLIC DOCUMENT 

10. At various times, ECM attributed this position to different alleged concerns: (1) only 

the CEO, an attorneywith a lapsed bar license, could make privilege determinations, apparently due 

to his unique familiarity with the material; (2) third parties (such as contract attorneys or litigation 

support firms) cannot be trusted with ECM's proprietary information; and (3) the alleged cost. 

11. "With respect to ECM's document production, there was extensive dialogue between 

the parties, and multiple points of disagreement. Most significantly, ECM sought to produce 

summaries of its communications with customers, rather than the communications tliemselves. 

12. On February 20, thirteen days after we withdrew our motion, counsel informed us 

that they would breach their agreement. 

13. This disclosure was provided late in the day on February 20, after Complaint 

Counsel had spent several days at ECM's offices taking depositions. 

14. The deposition of ECM's CEO was scheduled to begin at 9:00AM, but he and his 

attorneys arrived three hours late. 

15. ECM sent many customers and potential customers logos, certificates, flyers, 

brochures and other marketing materials via email attachments. 

16. Rather than produce documents in Concordance-ready load files (or another 

standard litigation format), ECM produced documents in giant PDFs. 

17. ECM l?roduced certain documents in one 20,000-page PDF, which is too large to 

search easily, and which will require an extensive (and very time-consuming) effort by litigation 

support to refashion into searchaole, database-loadable pieces. 

18. ECM failed to produce the overwhelming majority of documents in native format, 

which makes searching them significantly more difficult. 

19. ECM informed Complaint Counsel that it maintains a substantial portion of its 

documents in an ::MS Access database (which contains native material), but produced almost 

everything in PDF form, despite our request that we receive documents in native format. 

20. Although ECM's refused to provide documents in the format we requested, 

Complaint Counsel responded to ECM's document requests in the format it requested. 

21. Native files contain metadata, but ECM produced PDF documents sanitized or 

scrubbed (i.e., with metadata removed). 

22. This makes verifying when certain documents were created (or accessed) difficult or 

impossible. 

23. Furthermore, ECM's rolling production disclosed documents in chronological order, 

with the most recent (and, thus, likely most probative) documents last. 

' 

24. ECM changed its key qualified claim when the Commission revised the Green Guides 

in October, 2012, and again almost a year later, right after the Commission issued the Complaint. 

2 
PUBLIC DOCUMENT 

25. Thus, documents prepared over the _past eighteen months address ECM's current 

claims more directly than earlier-prepared material ECM disclosed in January and February. 

26. ECM designated essentially everything it produced as confidential. 

27. Attachment 1 hereto is a true and correct copy of Respondent's Initial Disclosures, 

dated November 25,2104. 

28. Attachment 2 hereto is a true and correct copy of a letter from Respondent's 

counsel, dated February6, 2014. 

29. Attachment 3 hereto is a true and correct copy of Respondent's Expen Witness 

List, dated 1vfarch 12,2014. 

30. Attachment 4 hereto are true and correct copies of (a) an email from Complaint 

Counsel to Respondent's Counsel, datedJanuary24, 2014, stating a new deposition schedule, (b) 

Complaint Counsel's revised personal deposition schedule, datedJanuary24, 2014, and (c) the 

original corporate designee deposition notice, dated January 10, 2014. 

31. Attachment 5 hereto is a true and correct copy of an email from Alan Poje 

containing attachments, dated March 11, 2010. 

32. Attachment 6 hereto is a true and correct copy of Cenificate of Biodegradability 

issued by ECM Biofilms, Inc., dated January 16, 2007. 

3 3. Attachment 7 hereto is a true and correct copy of an August 30, 2010 letter from 

Katherine Johnson to ECM Biofilms, Inc. 

34. Attachment 8 hereto is a true and correct copy of an email exchange, beginning 

with an email from Katherine Jolmson to Peter Arhangelsky, dated January 13, 2014. 

Executed this 18th of March 2014 in Washingron, D.C. 

3 
Complaint Counsel 

Exhibit A 

Attachment 1 

CCX-A:1
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 

RESPONDENT’S INITIAL DISCLOSURES

 Respondent ECM BioFilms, Inc. (“ECM”), pursuant to Rule 3.31(b)(1) and (2) of the 

Federal Trade Commission’s Rule of Practice for Adjudicative Proceedings (“Rules”), hereby 

submits its Initial Disclosures to Complaint Counsel for the Federal Trade Commission: 

I. Individuals and Organizations Likely to Have Discoverable Information 

The individuals identified in Complaint Counsel’s Initial Disclosures as “Current and 

Former ECM Employees” are believed by Respondent to possess direct knowledge of all 

discoverable information relevant to the allegations asserted in the Complaint, the proposed 

relief, or Respondent’s defenses. Other individuals may exist who possess information 

redundant of that possessed by current and former ECM employees, which facts may become 

known through discovery and would then warrant supplementation of these disclosures. 

Pursuant to Rule 3.31A(e), Respondent is not disclosing the identity of any nontestifying expert(s). Under § 3.31A(a), Respondent will disclose the identity of any testifying 

expert(s) at a later date based on Chief Administrative Law Judge Chappell’s Scheduling Order. 

 

PUBLIC DOCUMENT CCX-A:1 at 1
II. Relevant Documents

Respondent has in its possession, custody, or control documents collected while 

conducting its investigation into this matter and in its effort to meet FTC investigative demands 

following the Commission’s August 30, 2011 Inquiry Letter. It is believed that all documents 

germane to the case have been supplied to FTC with the exception of expert reports and 

attachments thereto which will be supplied together with those reports at the time designated in 

the Scheduling Order. All relevant documents are located at ECM’s headquarters at Victoria 

Place, Suite 225, 100 South Park Place, Painesville, Ohio 44077. Subject to the limitations in 

Rule 3.31(b), to the extent not already supplied to Complaint Counsel in response to 

investigative requests or demands, a copy of all remaining nonprivileged documents will be 

provided to Complaint Counsel in this matter. Respondent will not resupply copies of 

documents that have already been supplied to Complaint Counsel. 

Respondent is currently preparing copies of nonprivileged documents and materials 

for production. Respondent will provide Complaint Counsel such nonprivileged 

documents and materials as soon as possible. Respondent will not provide: (1) any 

documents, materials, or electronically stored information that are privileged as defined in 

§ 3.31(c)(4); (2) that concern hearing preparation as defined in § 3.31(c)(5), or (3) that 

concern experts as defined in § 3.31.A. 

Respectfully Submitted,

 /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

 Facsimile: 202-466-6938 

Email: jemord@emord.com

PUBLIC DOCUMENT CCX-A:1 at 2
CERTIFICATE OF SERVICE AND ELECTRONIC FILING

I hereby certify that on November 25, 2013, I caused a true and correct copy of the 

foregoing RESPONDENT’S INITIAL DISCLOSURES to be served as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

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

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

Commission’s Rules.

 /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

 Facsimile: 202-466-6938 

Email: jemord@emord.com

PUBLIC DOCUMENT CCX-A:1 at 3
Complaint Counsel 

Exhibit A 

Attachment 2 

CCX-A:2
   

1 

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 

 

RESPONDENT ECM BIOFILM’S EXPERT WITNESS LIST

 Respondent ECM BioFilms, Inc. (“ECM”), pursuant to the Court’s November 21, 2013 

Scheduling Order, hereby identifies those experts upon whom Respondent may call to testify in 

response to Complaint Counsel’s case-in-chief, in defense of Respondent generally, or in support 

of Respondent’s affirmative defenses. 

1. Dr. Ranajit Sahu, Ph.D. 

311 North Story Place 

Alhambra, CA 91801 

Dr. Sahu’s anticipated testimony will be described in his expert report, which Respondent 

will produce to Complaint Counsel by the date set in the Court’s Scheduling Order. The 

general subject matter of his anticipated testimony includes, but is not limited to, 

biodegradation of plastic polymers with and without ECM’s additive; ASTM testing 

protocols and standards; and an evaluation of science related to, and ECM’s 

substantiation for, ECM’s biodegradability claims. 

2. Dr. Ryan N. Burnette, Ph.D. 

Alliance Biosciences 

9011 Arboretum Parkway, Suite 310 

Richmond, VA 23236 

Dr. Burnette’s anticipated testimony will be described in his expert report, which 

Respondent will produce to Complaint Counsel by the date set in the Court’s Scheduling 

Order. The general subject matter of his anticipated testimony includes, but is not limited 

to, biodegradation of organic and inorganic matter, including plastic polymers; 

PUBLIC DOCUMENT CCX-A:2 at 1
   

2 

microbiological metabolism, life cycles, colonization, and procreation in laboratory and 

environmental biota; testing protocols and standards; biochemical principles involved in 

plastics degradation; and an evaluation of Respondent’s substantiation. 

3. Dr. David W. Stewart, Ph.D. 

Loyola Marymount University 

College of Business Administration 

1 LMU Drive 

Los Angeles, CA 90045 

Dr. Stewart’s anticipated testimony will be described in his expert report, which 

Respondent will produce to Complaint Counsel by the date set in the Court’s Scheduling 

Order. The general subject matter of his anticipated testimony includes, but is not limited 

to, consumer perception of biodegradable marketing claims and Respondent’s 

biodegradability claims; materiality of Respondent’s biodegradable marketing claims; 

and the Federal Trade Commission’s reliance on consumer perception data in the field of 

biodegradable marketing claims. 

4. Dr. Morton A. Barlaz, Ph.D., P.E. 

North Carolina State University 

Dept. of Civil, Construction & Environmental Engineering 

Campus Box 7908 

Raleigh, NC 27695-7908 

Dr. Barlaz’s anticipated testimony will be described in his expert report, which 

Respondent will produce to Complaint Counsel by the date set in the Court’s Scheduling 

Order. The general subject matter of his anticipated testimony includes, but is not limited 

to, biodegradation of municipal solid waste under specific landfill conditions; conditions 

in various categories of municipal solid waste landfills, biodigestors, and bioreactors; and 

waste composition. 

5. Dr. Alexander Volokh, Ph.D., J.D. 

Emory Law School 

1301 Clifton Rd. 

Atlanta, GA 30322 

Dr. Volokh’s anticipated testimony will be described in his expert report, which 

Respondent will produce to Complaint Counsel by the date set forth in the Court’s 

Scheduling Order. The general subject matter of his anticipated testimony includes, but 

is not limited to, the nature, extent, and importance of conflicts of interest present; the 

nature and extent of economic damages suffered by ECM; the materiality and economic 

significance of ECM’s marketing claims. 

PUBLIC DOCUMENT CCX-A:2 at 2
   

3 

DATED: March 12, 2014 

Respectfully submitted, 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

Facsimile: 202-466-6938 

 

PUBLIC DOCUMENT CCX-A:2 at 3
   

4 

CERTIFICATE OF SERVICE 

I hereby certify that on March 12, 2014, I caused a true and correct copy of the foregoing 

Respondent’s Expert Witness List to be served on Complaint Counsel as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

 Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, 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 12, 2014 

        /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937

PUBLIC DOCUMENT CCX-A:2 at 4
Complaint Counsel 

Exhibit A 

Attachment 3 

CCX-A:3
 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938 

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

February 6, 2014 

VIA EMAIL: 

Katherine Johnson (kjohnson3@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

U.S. Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, D.C. 20580 

 Re: No. 9358, In re ECM BioFilms; Document Production 

Dear Counsel: 

 This letter follows our conversation of February 6, 2014 concerning Respondent ECM’s 

discovery response. The production defined in this letter will render moot Complaint Counsel’s 

pending Motion to Compel Production of Documents (filed January 23, 2014). 

ECM shall produce the entirety of its customer correspondence files contained in its 

archived electronic storage for the period of January 1, 2009 through January 1, 2014. That 

production will include all files contained in ECM’s electronic storage or database related to all 

domestic ECM customers. That production will be limited in the following ways. First, ECM 

will redact or expurgate its customers’ confidential business information to the extent that 

information is defined by mutual confidentiality agreements executed with certain ECM 

customers. Second, ECM will redact or expurgate all information subject to privilege, including, 

e.g., the attorney work product privilege, the attorney-client privilege, and trade secret privileges. 

Third, because ECM will be required to produce bulk documents under short deadlines, ECM 

shall designate all correspondence with customers (and associated files) as confidential under the 

standing protective order. Thereafter ECM will refine its designations. 

 ECM will timely respond to Complaint Counsel’s second set of discovery requests, and 

provide all responsive documents under Complaint Counsel’s first set of discovery requests, 

subject to the aforementioned limitations. ECM will produce all scientific and technical 

documents responsive to your discovery demand if those documents (1) are possessed by ECM 

and (2) were not already produced in prior productions. 

11808 WOLF RUN LANE

CLIFTON, VA 20124 

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286 

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

1050 SEVENTEENTH STREET, N.W. 

SUITE 600 

WASHINGTON, D.C. 20036 

(202) 466-6937 | FAX (202) 466-6938 

Peter A. Arhangelsky, Esq. 

602.334.4416 

parhangelsky@emord.com 

A Professional Corporation

WASHINGTON, D.C. | VIRGINIA | PHOENIX

PUBLIC DOCUMENT CCX-A:3 at 1
 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938 

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

ECM will produce its archived files on a rolling basis, meaning as it is retrieved and 

immediately after it is reviewed by counsel, on or before February 21, 2014. Thus, ECM agrees 

to complete the production by February 21, 2014, subject to its obligation and right to amend or 

supplement discovery under 16 C.F.R. § 3.31(e). ECM will produce the remainder of its 

Microsoft Access database summations (encompassing all emails, faxes, and phone calls from 

January 1, 2009 to the present) on or before February 12, 2014. ECM will not produce the MS 

Access notations in native format because the program produces records in PDF format, which 

have been supplied to Complaint Counsel in a “reasonably usable form.” See 16 C.F.R. § 

3.37(c)(ii); see also 16 C.F.R. § 3.37(c)(iii) (“[a] party need not produce the same electronically 

stored information in more than one form”). 

 ECM provides this proposal in a good faith effort to resolve outstanding discovery 

disputes. The Court has imposed a 1pm Eastern deadline on February 7, 2014 to consider any 

surreply ECM may file in response to Complaint Counsel’s pending Motion to Compel. ECM 

intends to file a Motion for Leave to File a Surreply no later than 12:00pm Eastern, February 7, 

2014, unless Complaint Counsel agrees to withdraw or moot the pending motion before that 

time. 

 Please do not hesitate to contact us with any questions. 

 

 Sincerely, 

 

 Jonathan W. Emord 

Peter A. Arhangelsky 

Counsel to Respondent ECM BioFilms, Inc. 

PUBLIC DOCUMENT CCX-A:3 at 2
Complaint Counsel 

Exhibit A 

Attachment 4 

CCX-A:4
1

Cohen, Jonathan

From: Jillson, Elisa

Sent: Friday, January 24, 2014 1:29 PM

To: 'Peter Arhangelsky'; 'Jonathan Emord'; 'Lou Caputo'

Cc: Johnson, Katherine; Cohen, Jonathan

Subject: ECM BioFilms, No. 9358, Notice of Depositions

Attachments: Notice of Despositions.pdf

Counsel:

Please find attached Complaint Counsel’s Notice of Depositions.

As an accommodation to you, we noticed the depositions for Robert Sinclair and Ken Sullivan at ECM’s offices in

Painesville, to run consecutively after ECM’s Rule 3.33(c)(1) deposition on February 18th. If Mr. Sinclair’s deposition on

the 19th ends early, we could take Mr. Sullivan’s deposition on the 19th as well. We would make this adjustment only if

time permits and if you agree to the change. Please make a phone available during the depositions at ECM’s offices, as

Complaint Counsel will be attending the deposition both in person and by phone.

Regards,

Elisa	K.	Jillson	

Attorney	

Division	of	Enforcement,	Bureau	of	Consumer	Protection	

Federal	Trade	Commission	

600	Pennsylvania	Avenue,	NW,	M‐8102B	

Washington,	DC	20580	

Phone:		202.326.3001	

Fax:		202.326.2558	

PUBLIC DOCUMENT CCX-A:4 at 1
PUBLIC DOCUMENT 

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 

COMPI .. AINT COUNSEL'S NOTICE OF DEPOSITIONS 

PLEASE TAKE NOTICE that, pursuant to Rule 3.33 of the Federal Trade Commission's 

Ru1es of Practice for Adjudicative Proceedings, Complaint Counsel will take the deposition, 

upon oral examination, of the following witnesses: 

l. Robert Sinclair February 19, 2014 9:00A.M. 

2. Ken Su1livan February 20, 2014 9:00A.M. 

3. Thomas Nealis March 4, 2014 9:00A.M. 

4. Scott Fletcher March 5, 2014 9:00A.M. 

5. Michelle R. Leicher March 6, 2014 9:00A.M. 

6. Kristen A. Marineau March 6, 2014 1:30P.M. 

All depositions will conunence on the specified date and time, before an officer authorized to 

take::de~esitien~epesi iens-e-f Rebert-Sh'lemff-ancl-Ken-Sull-i-van-wil.J-becooft€hteted-at tft" 

offices of ECM, Victoria Place- Sujte 225, 100 South Park Place, Painesville, Ohio 44077. The 

depositions of Thomas Nealis, Scott Fletcher, Michelle R. Leicher, and Kristen A. Marineau will 

be conducted at the offices of the Federal Trade Commission, East Central Region, 1111 

Superior Avenue, Suite 200, Cleveland, Ohlo 44114-2507. 

Dated: January 24,2014 Respectful!~ uti&d~- . 

Katherine Johnson ( 02) 326-2185 

Jonathan Cohen (202) 326-2551 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvruria Avenue, NW, M-8102B 

Washington, DC 20580 

CCX-A:4 at 2 

T 

I 

I 

.I 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on January 24, 2014, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel's Notice of Depositions to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRunLane 

Clifton, VA 20124 

Email: jernord@emord.com 

Lou Caputo 

Emord & Associates, P .C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

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

document that is available for review by the parties and the adjudicator. 

=== · 

Katherine . son 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 

CCX-A:4 at 3 

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

 

COMPLAINT COUNSEL’S NOTICE OF 

RULE 3.33(c)(1) DEPOSITION

To: ECM Biofilms, Inc.

Victoria Place, Suite 225 

100 South Park Place 

Painesville, OH 44077 

PLEASE TAKE NOTICE that Complaint Counsel will depose ECM Biofilms, Inc. 

(“ECM”), upon oral examination, pursuant to Rule 3.33(c)(1) of the Federal Trade 

Commission’s Rules of Practice for Adjudicative Proceedings, as to the matters set forth below. 

ECM is required to designate one or more officers, directors, managing agents, or other persons 

to testify on its behalf who have knowledge of the matters specified below. Pursuant to Rule 

3.33(c)(1) and other applicable authority, ECM’s designee must testify regarding all information 

known or reasonably available to ECM. 

1. The allegations in the Complaint. 

2. The bases for ECM’s refusal to unequivocally admit every allegation in the 

Complaint that ECM did not unequivocally admit. 

3. ECM’s affirmative defenses. 

4. Any and all objections to the conduct relief Complaint Counsel seeks to obtain. 

5. ECM’s basis for its refusal to unequivocally admit each Request for Admission that 

ECM did not unequivocally admit. 

6. ECM’s claims that plastic products made with ECM’s additive are (a) biodegradable, 

(b) biodegradable in a landfill, (c) biodegradable in approximately nine months to 

five years, and (d) biodegradable in some period greater than a year. 

7. ECM’s sales and marketing strategies related to the advertising claims identified in

Topic 6. 

PUBLIC DOCUMENT CCX-A:4 at 4
8. ECM’s communications with current, former, and potential customers and 

distributors related to the advertising claims identified in Topic 6.

9. ECM’s substantiation, including, without limitation, various scientific tests such as 

ASTM D5511, for the advertising claims identified in Topic 6. 

10. Other scientific tests relevant or potentially relevant to the biodegradability of plastic 

including, without limitation, ASTM 5209, ASTM D5511, ASTM D5526, ASTM 

D5338, ASTM D6400, SEM imaging, GPC, ISO 14855, and C-14 tagging, regardless 

of whether ECM relies upon the test for substantiation. 

11. Every scientific test, report, or article related to biodegradability that ECM conducted, 

caused to be conducted, created, caused to be created, reviewed, or relied upon for 

any purpose, regardless of whether ECM relies upon it for substantiation. 

12. All certificates of biodegradability (or other similar documents) that ECM issued, or 

considered issuing, to customers or potential customers. 

13. All logos (or other similar marks) concerning or indicating biodegradability that ECM 

issued, or considered issuing, to customers or potential customers. 

14. ECM’s position with respect to consumer perception of claims that a product is (a) 

biodegradable, (b) biodegradable in a landfill, (c) biodegradable in approximately 

nine months to five years, and (d) biodegradable in some period greater than a year, 

including all facts, studies, or other evidence supporting ECM’s position. 

15. All facts, studies, surveys, or other evidence that ECM has ever received, reviewed, 

or relied upon regarding consumer perception of claims that a product is (a) 

biodegradable, (b) biodegradable in a landfill, (c) biodegradable in approximately 

nine months to five years, and (d) biodegradable in some period greater than a year, 

including all facts, studies, or other evidence supporting ECM’s position. 

16. ECM’s position with respect to its customers’ perception of claims that plastic 

products made with ECM’s additive are (a) biodegradable, (b) biodegradable in a 

landfill, (c) biodegradable in approximately nine months to five years, and (d) 

biodegradable in some period greater than a year, including all facts, studies, or other 

evidence supporting ECM’s position. 

17. All facts, studies, surveys, or other evidence that ECM has ever received, reviewed, 

or relied upon regarding its customers’ perception of claims that plastic products 

made with ECM’s additive are (a) biodegradable, (b) biodegradable in a landfill, (c) 

biodegradable in approximately nine months to five years, and (d) biodegradable in 

some period greater than a year, including all facts, studies, or other evidence 

supporting ECM’s position. 

18. The representations made in the Declaration of Robert Sinclair executed December 

12, 2013. 

PUBLIC DOCUMENT CCX-A:4 at 5
19. ECM’s communications with the media. 

20. ECM’s communications with current, former, and potential customers and 

distributors regarding this action, or any other litigation or enforcement proceeding of 

any sort related in any way to biodegradability claims. 

21. ECM’s communications with any person or institution that has, or purports to have, 

any expertise regarding chemistry, biodegradability, or materials science. 

22. ECM’s communications with the FTC, NAD, or any other organization or public 

agency in any way responsible for or with jurisdiction over marketing claims. 

23. ECM’s contractual arrangements with its current and past customers and distributors. 

24. The contents and usage of ECM’s Website.

25. ECM’s document retention policies and practices, and its compliance with document 

preservation obligations. 

26. ECM’s practices for archiving and maintaining records of customer-related 

communications and other customer-related documents.

The deposition will be held on Friday, January 24, 2014 at 9:00 A.M. at the offices of the Federal 

Trade Commission’s Division of Enforcement, 1800 M St. NW, 8th floor, Washington, DC, 

before an officer authorized to take depositions. 

/s/ Elisa Jillson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 

PUBLIC DOCUMENT CCX-A:4 at 6
CERTIFICATE OF SERVICE

I hereby certify that on January 10, 2014, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel’s Notice of Rule 3.33(c)(1) Deposition to be served

as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com

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

document that is available for review by the parties and the adjudicator. 

/s/ Elisa Jillson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 

PUBLIC DOCUMENT CCX-A:4 at 7
Complaint Counsel 

Exhibit A 

Attachment 5 

CCX-A:5
Alan Poje

From: Alan Poje

Sent: Thursday, March 11, 2010 1:13 PM

To:

Subject: ECM BioFilms' Additives for Manufacturing Biodegradable Plastic Packaging and Products

Attachments: TDS ECM6_0701 0806.pdf; Biodegradation Cert_Sample 070116.pdf; Biodegradation 

Mechanism 051028.pdf; Customer Certificate 070821.doc; ECM Flyer 070429.pdf; ECM 

Gen_Explanation 081203.pdf; ECM Gen_Explanation 081203a.pdf; ECM vs Alternatives 

080617.pdf; Life Expectancy 070116.pdf; MSDS ECM6_0701 100113.pdf; Pricing Sheet 

ECM6_0701_D 100115.pdf; Pricing Sheet ECM6_0701_G 100115.pdf

Page 1 of 1

3/12/2010

Dear ,

Attached are the documents I spoke of earlier today. If you should have any questions, please don’t 

hesitate to contact us.

We look forward to your business.

Best regards,

Alan Poje

ECM BioFilms, Inc.

ECM BioFilms, Inc.

Victoria Place – Suite 225

100 South Park Place

Painesville, Ohio44077 U.S.A.

Phone: (440) 350-1400 • Fax: (440) 350-1444 • Toll Free in U.S.: (888) 220-2792

e-mail: biodeg@ecmbiofilms.com

website: http://www.ecmbiofilms.com

CONFIDENTIALITY NOTICE

The information contained in these documents may be privileged and confidential and is intended for the exclusive use of the 

addressee designated above. If you are not the addressee, you are hereby notified that any disclosure, reproduction, distribution, or 

other dissemination or use of this communication is strictly prohibited. If you have received this transmission in error, please inform 

us and destroy the original message.

The opinions expressed in this correspondence are not necessarily those of ECM BioFilms, Inc.

Thank you.

CONFIDENTIAL DOCUMENT 

SUBJECT TO PROTECTIVE ORDER

CONFIDENTIAL DOCUMENT 

SUBJECT TO PROTECTIVE ORDER

ECM-031134 PUBLIC DOCUMENT CCX-A:5
Complaint Counsel 

Exhibit A 

Attachment 6 

CCX-A:6
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Complaint Counsel 

Exhibit A 

Attachment 7 

CCX-A:7
 In this letter, the products identified in response to request number 1 are collectively 1

referred to as “ECM Additives,” and each being an “ECM Additive.”

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

600 PENNSYLVANIA AVENUE, NW

WASHINGTON, DC 20580

Division of Enforcement

Bureau of Consumer Protection

August 30, 2011

VIA FEDERAL EXPRESS

Robert Sinclair, President

ECM BioFilms, Inc.

Victoria Place, Suite 225

100 South Park Place

Painesville, Ohio 44077

Dear Mr. Sinclair:

Federal Trade Commission staff is conducting an inquiry into your company’s marketing

of biodegradation-promoting additives for plastics. The purpose of this inquiry is to determine

whether ECM BioFilms, Inc. (“ECM”) is engaged in unfair or deceptive acts or practices in

violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. This inquiry is

undertaken pursuant to the provisions of Sections 6, 9, and 10 of the Federal Trade Commission

Act, 15 U.S.C. §§ 46, 49, and 50. 

To facilitate this inquiry, we request that ECM submit the following documents and

information, including any electronically stored information (“ESI”), identified below voluntarily

and in lieu of compulsory process. Unless otherwise noted, your responses to the requests below

should cover the period beginning January 1, 2008, through the date of full and complete

compliance with this letter.

1. Identify and describe each product that ECM has represented, expressly or by implication,

initiates, promotes, or enhances biodegradation of plastic. For each product identified,

state the time period it was marketed or sold by ECM.1

2. Provide five samples of each ECM Additive, including all packaging inserts.

3. Identify in what form, including, but not limited to, the type of media, ECM made or

makes claims or representations about the purported biodegradability of ECM Additives

PUBLIC DOCUMENT CCX-A:7 at 1
Mr. Robert Sinclair

Page 2

 In this letter, the word “advertisement” includes but is not limited to the following: any 2

written or verbal statement, illustration, or depiction that is designed to effect a sale or create

interest in the purchasing of goods or services, whether it appears on the Internet, in email, on

packaging, in a brochure, newspaper, magazine, pamphlet, leaflet, webinar, circular, mailer, book

insert, free standing insert, letter, catalog, poster, chart, billboard, point of purchase material

(including, but not limited to, a display or an item worn by salespeople), fact sheet, film, slide,

radio, broadcast or cable television, audio program transmitted over a telephone system,

program-length commercial, or in any other medium. 

and/or plastic containing ECM Additives.

4. Provide copies of each different ECM advertisement (including those disseminated to or 2

by ECM distributors) that represents, expressly or by implication, that ECM Additives

initiate, promote, or enhance biodegradation of plastic.

For television advertisements, please submit a DVD or CD containing a video file in a

standard format, as well as a photoboard and script for each advertisement. For radio

advertisements, please submit a CD containing an audio file in a standard format, as well

as a script for each advertisement. For print advertisements, please provide original print

advertisements if available, or if not available, color copies of such advertisements. For

foreign language advertisements, please provide the advertisements in the language in

which they were disseminated as well as English translations. For email solicitations,

please submit a hard copy of each different solicitation. For advertisements appearing on

the Internet, World Wide Web, or any commercial online service, please submit a copy or

transcript of each advertisement, as well as documents showing metatags, together with

the uniform resource locator (URL) or other Internet location where the advertisement

appeared.

5. To the extent not provided in response to request number 4, provide copies of any

materials relating to any ECM Additive made available to any ECM Additive distributor

or customer, including, but not limited to: packaging, clipart, seals, logos, other

marketing materials, instructions or suggestions regarding making marketing claims, or

instructions for the use or marketing of the ECM Additive.

6. For each item responsive to request numbers 4 and 5, indicate the dates of dissemination

and describe where each item was disseminated.

7. Identify the individual or individuals, regardless of date, who determined what claims or

PUBLIC DOCUMENT CCX-A:7 at 2
Mr. Robert Sinclair

Page 3

representations should be, or were, made about the purported biodegradability of ECM

Additives and/or plastics containing ECM Additives, and state the basis for his, her or

their decision to make these claims or representations.

8. Describe in detail ECM’s technology for initiating, promoting, or enhancing

biodegradation of plastic, including, but not limited to, facts relating to:

a. disposal method(s) required for complete biodegradation;

b. soil, air, moisture, or temperature conditions;

c. aerobic or anaerobic processes; 

d. microorganisms involved;

e. end products, including, but not limited to, biomass, water, carbon dioxide, and

methane; 

f. duration of time for complete biodegradation. 

With regard to ECM’s claim that MasterBatch PelletsTM, or any other ECM Additive, is a

“proprietary” formulation, state whether the product label fully lists the complete

formulation, and if it does not, identify each active and inactive ingredient and the

respective amount of each. 

9. Provide all documents, whether prepared by or for ECM or any other entity, including any

advertising agency, referring or relating to consumer perception, comprehension, or recall

(including, but not limited to, copy tests, marketing or consumer surveys and reports,

penetration tests, recall tests, audience reaction tests, and communication tests) of: (1)

any advertisement, whether disseminated or not, that represents, expressly or by

implication, that ECM Additives initiate, promote, or enhance biodegradation of plastic;

and/or (2) biodegradability in general.

10. Provide all communications, including, but not limited to, written memoranda, electronic

communications, and written memorializations of oral communications (other than

routine invoices), referring or relating to: 

a. whether ECM Additives are biodegradable;

b. whether ECM Additives initiate, promote, or enhance biodegradation of plastic;

c. whether or how to market ECM Additives as capable of initiating, promoting, or

enhancing biodegradation of plastic.

11. Provide all documents, including, but not limited to, tests, reports, studies, scientific

literature, and written opinions, and state all facts that substantiate any express or implied

claims that ECM Additives initiate, promote, or enhance biodegradation of plastic,

PUBLIC DOCUMENT CCX-A:7 at 3
Mr. Robert Sinclair

Page 4

whether or not you believe ECM made such claim(s), including, but not limited to, the

following claims:

a. “The plastic products made with [ECM Additives] will break down in

approximately 9 month [sic] to 5 years in nearly all landfills or wherever else they

may end up.”

b. “Our masterbatch fully biodegrades in home composts, commercial composts,

buried in the ground or landfills, tilled into soil, or littered on land or sea.” 

c. “ECM’s technology is a process which enables the microorganisms in the

environment to metabolize the molecular structure of plastic products into humus

that is beneficial to the environment.” 

d. “Material treated with ECM [Additives] has been tested and proved as

biodegradable and safe for the environment by using the following . . . ASTM

5511.”

e. “[P]lastic products that are manufactured with at least a one percent (1%) load, by

weight, of our ECM MasterBatch Pellets will fully biodegrade . . . .” 

f. Plastics containing an ECM Additive that are disposed of in a landfill will

biodegrade faster than organic material disposed of in the same landfill and

exposed to the same conditions.

g. The ASTM D-5511 test replicates conditions found in a typical landfill.

If no substantiation exists for any of the above claims, please so state. Please indicate, on

each item submitted, the claim or claims that the material provided substantiates. If any

portion of the material is in the form of oral expert opinion, please include: (1) a written

statement of the opinion; (2) a full description of the basis therefor; (3) when the opinion

was first rendered; (4) the name, occupation, and professional affiliation of the individual

rendering the opinion, or name and professional affiliation of the entity rendering the

opinion; and (5) the name, job title, and current address of the person to whom the

opinion was rendered. 

12. Provide all documents that tend to call into question or disprove any express or implied

claims that ECM Additives initiate, promote, or enhance biodegradation of plastic,

including, but not limited to, the claims identified in request number 11.

13. Identify all persons, regardless of date, upon whose data, information, documents, advice,

opinion, or expertise ECM relied to substantiate or to determine whether there was

substantiation for all claims made relating to the biodegradability of ECM Additives

and/or plastics containing ECM Additives.

14. If any ECM express or implied claim referring or relating to the biodegradability of

PUBLIC DOCUMENT CCX-A:7 at 4
Mr. Robert Sinclair

Page 5

plastics containing ECM Additives does not apply to a typical landfill environment (i.e., a

“dry tomb” or sanitary landfill):

a. Identify the product(s) to which this fact applies; 

b. Identify the environment(s) in which the claims do apply;

c. Explain how a consumer would become aware of this fact before purchasing any

of the products you identified in response to request number 14.a; and

d. Identify any advertisements you provided in response to request number 4 that

expressly disclose this fact.

15. For each of the years 2008, 2009, 2010, and 2011 through the date of full and complete

compliance with this letter, provide the following sales and advertising expenditure

information for each ECM Additive, including MasterBatch PelletsTM:

a. Annual gross sales, in units sold;

b. Annual gross sales, in dollar amount;

c. Total annual advertising and promotional expenditure.

If ECM maintains financial data on a fiscal year basis that differs from the calendar year,

provide the requested data according to those fiscal years and identify the dates of the

fiscal year.

16. For each of the years 2008, 2009, 2010, and 2011 through the date of full and complete

compliance with this letter, provide a list of customers who have purchased MasterBatch

PelletsTM or any ECM Additive, including through sales by distributors, and the intended

end-use product, if known. For each customer identified, list ECM’s revenue per

customer per year.

17. State the current or most recent average retail or wholesale price for each ECM Additive.

Although we hope to conduct our inquiry with as little inconvenience and cost to you as

possible, we reserve the right to seek access to additional records and pursue such additional

avenues of inquiry as may be deemed appropriate. Because the Commission at a later time may

request all documents relating to any of the questions in this letter, please suspend any

procedures for document destruction and take other measures to prevent the destruction of

documents that are relevant to this investigation while it is pending.

Under Section 21(f) of the Federal Trade Commission Act, 15 U.S.C. § 57b-2(f), all

documents and information provided voluntarily in lieu of compulsory process in law

enforcement investigations will be exempt from public disclosure under the Freedom of

PUBLIC DOCUMENT CCX-A:7 at 5
Mr. Robert Sinclair

Page 6

Information Act, 5 U.S.C. § 552(b)(3)(B). Furthermore, under Commission Rule 4.10(d), any

material you provide which is marked “CONFIDENTIAL” will be given the same confidential

treatment as material provided in response to compulsory process. The Commission’s

procedures concerning public disclosure and confidential treatment can be found at 15 U.S.C.

§§ 46(f) and 57b-2, and Commission Rules 4.10-4.11, 16 C.F.R. §§ 4.10-4.11.

Please have a responsible corporate officer or manager of ECM certify under penalty of

perjury that the documents and other information produced or identified in response to this letter

are complete and accurate and that the documents and information represent all documents and

information responsive to this letter. In addition, please ensure that the submission of any ESI

complies with the instructions outlined in Attachment A. The Bureau of Consumer Protection

Guide included as Attachment B provides detailed directions for submissions responsive to this

letter.

You are also advised that all claims based on privilege (e.g., attorney-client privilege or

the Fifth Amendment) or judicial order must be asserted on or before compliance with this

request. If any responsive material is withheld, please submit a schedule of the items withheld

which states individually as to each such item the type, title, specific subject matter, and date of

the item; the names, addresses, positions, and organizations of all authors and recipients of the

item; and the specific grounds for claiming that the item is privileged.

Please provide the requested documents and information via overnight courier, such as

Federal Express, by September 14, 2011, to: 

William Burton, Investigator Federal Trade Commission

600 Pennsylvania Ave., NW, Mailstop M-8102B

Washington, DC 20580

Telephone (202) 326-2724. 

In advance of this deadline, I encourage you to contact me at (202) 326-2185 or Kathleen

Pessolano at (202) 326-2029 as soon as possible to schedule a meeting (telephonic or in person)

to be held within ten (10) days after receipt of this letter in order to confer regarding your

response, including, but not limited to, a discussion of the submission of ESI and other electronic

productions as described in this letter. 

PUBLIC DOCUMENT CCX-A:7 at 6
PUBLIC DOCUMENT CCX-A:7 at 7

Mr. Robert Sinclair 

Page 7 

If you have any questions, please contact me or Kathleen Pesso1ano at the numbers 

provided above. Your prompt cooperation and assistance in this matter is appreciated. 

Enclosures. 

Sincerely, 

Katherine 

~~~ Johnson 

Staff Attorney 
Complaint Counsel 

Exhibit A 

Attachment 8 

CCX-A:8
1

Cohen, Jonathan

From: Johnson, Katherine

Sent: Monday, January 13, 2014 1:08 PM

To: 'Peter Arhangelsky'

Cc: 'Jonathan Emord'; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo'

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents

Peter,

                First, we will negotiate search terms to reduce the number of responsive materials, but we want to begin that

process expeditiously.  We recognize your right to “exhaust all avenues of review” with respect to the Court’s decision,

but we view attempts to seek further review as frivolous, and we want to ensure that the process moves quickly once

“all avenues of review” are exhausted.  Our proposal is simple:  

‐          we will provide you with a list of 50 search terms or phrases, and you’ll produce the responsive documents in

native form; and

‐          we will reach a stipulation regarding the evidentiary ramifications of your limited production.   

With respect to the stipulation, it’s necessary because we’re agreeing to accept vastly less than what Respondent is

actually obligated to produce, and it’s virtually certain that we’ll never see a significant amount of highly probative

information.  This is a big “win” for your client, but precisely because we’ll have incomplete information, there are a lot

of potential evidentiary objections that we can’t fairly meet because we won’t have the necessary

documents.  Specifically:  we’ll need you to stipulate:  (1) to the authenticity of your production; (2) that you will not

object to the admissibility of any portion of your production on “completeness,” “best evidence” or other similar

grounds that we could correct if we had everything we’re entitled to; and (3) that nothing in your production constitutes

inadmissible hearsay (again, because we won’t have a complete production, we’ll be impaired in our ability to admit

statements as adoptive admissions or under hearsay exceptions that require context that we may lack).  All of

Respondent’s other objections would be expressly preserved (including, for instance, Respondent’s right to object to the

admissibility of its production, or portions thereof, on relevance grounds).   

                Second, the above proposal should limit Respondent’s costs.  However, we are not responsible for

Respondent’s odd decision to store documents in a manner that makes them atypically difficult to search and

retrieve.  If you’re right that Respondent’s poor document management processes insulate it from discovery, then no

company facing likely litigation would have much incentive to maintain information in an accessible manner.  In short,

the fact that Respondent made it unusually difficult to search and access its own materials isn’t relevant to what

Respondent is obligated to produce.   

Third, with respect to the Microsoft Access issue, there should be no dispute here.  Respondent is obligated to

produce information in the manner it stores that information.  We don’t doubt your current claim that Microsoft Access

“generates reports in PDF format,” but that’s not what Lou told us before.  Previously, Lou represented that Respondent

“ordinarily maintained” its information in PDF – which isn’t the same thing.  More important, you’re incorrect that “the

content of those [PDF] documents does not differ in any respect to the information contained within the database.”  As

you know, the database information (native files) contain metadata, whereas your PDF production to us did not.  And

most important, the giant 1200‐page PDF you sent us is unwieldy and difficult for us to use, whereas we can sort and

search through Microsoft Access data easily.  We understand that you’ve requested that documents be exchanged in

PDF, and we have converted (and will convert) our production to PDF for you at your request, but we don’t understand

why you cannot provide us with the Microsoft Access data Respondent actually has.   

We would like to discuss these issues at the meet and confer tomorrow at 4 p.m.  

PUBLIC DOCUMENT CCX-A:2 at 1
2

Katherine

_________________________________________ 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnson3@ftc.gov

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com] 

Sent: Friday, January 10, 2014 4:35 PM 

To: Johnson, Katherine 

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Katherine,

  

I respond here to your email from yesterday and Jonathan’s email from January 9th at 2:24pm Eastern, both concerning

electronic discovery.  We have reviewed the ALJ’s Order issued today, and we intend to exhaust all avenues of review

with respect to certain portions of that decision.  However, as applicable here, Judge Chappell predicated part of his

ruling on your willingness to “negotiate search terms to reduce the number of responsive materials...”  See ALJ Opp. at

8.  The information I provide below should further that purpose.

  

As for the Microsoft Access database, the program generates reports in PDF format.  We were provided with the PDF

reports, and those are what we disclosed.  Because the PDF files are generated directly from the database program (e.g.,

printed to PDF), the content of those documents does not differ in any respect to the information contained within the

database.   

  

The number 142,078 reflects the total number of entries in ECM’s database.  For our initial production, ECM screened its

notes by selecting only prospective customers.  The entries were not screened or retrieved using keywords and, so,

those notes reflect the sum total of all material correspondence reported in the database for the entities selected.  The

balance of the 142,078 entries includes information concerning all of ECM’s former customers, inactive customers, and

active customers.  ECM can provide those records, subject to some agreement that will limit the breadth of information

as per the Judge’s ruling today.  We assume from your representations before the ALJ that you will honor your offer to

limit the scope of discovery and, to the extent that assumption is incorrect, we intend to file a motion for

reconsideration.

As I mentioned in my prior email, ECM does not sort its archived email files.  ECM employees preserve their emails by

printing into PDF files at the end of each day (or occasionally after several days).  Each single archived PDF thus contains

information among various contacts and subjects, i.e., a day’s worth of unsorted information.  Employees do this for

inbound and outbound messages separately and, so, each day results in two archived files.  To provide you with the

original email files referenced in our recent 1,200 page disclosure, someone must search each archived PDF file (which

number in the thousands), and then manually extract every responsive page from the larger PDF documents which also

contain unrelated messages.  We can generally estimate that of the 142,078 database notations (including files already

produced), at least two‐thirds to three‐quarters of those entries will correlate with email files.  So take the 8,540 notes

from our recent production as an example.  Even if only 5,600 of those notes represent email correspondence, ECM

would need to manually search each master PDF file from the days in question to find and then extract each of the 5,600

specific emails.  The dates involved spanned from 2006 and 2011, which might therefore involve thousands of archived

master PDF files.  If these discovery demands continue with ECM’s other customers, ECM would be required to search

for and manually extract perhaps over one hundred thousand emails.

PUBLIC DOCUMENT CCX-A:2 at 2
3

  

That task alone could require weeks to complete at substantial cost to ECM, even with a team of staffers assigned.  As it

stands, ECM’s President, Bob Sinclair, is the only employee who can perform the bulk of this work.  Rule 3.31(c)(2)

specifically guards against the harms from this type of massive discovery burden, particularly when the “burden and

expense of the proposed discovery on a party ... outweigh its likely benefit.”  That seems quite applicable here, given

that you can examine the notations, and maybe compare those notes with a sampling of actual email files to verify

completeness.  To be clear, ECM is not stating that it refuses to provide original email files or attachments.  However

because the discovery burden is so substantial, ECM needs you to narrow your discovery requests within reasonable

limits, as contemplated by the Judge’s Order.  For instance, ECM can extract and disclose certain files or documents that

relate to specific issues or contacts (e.g., through global keyword inquiries).  That work remains burdensome, but far less

so than a comprehensive production of all files.   

  

ECM will not provide its entire archived folder for your review because those comingled files contain highly sensitive,

irrelevant, and privileged information, which would include documents and correspondence between attorneys and

personal contacts.  The best means to limit ECM’s burden is to prepare narrow discovery requests that fit within Rules

3.37(a) and 3.31(c)(2).  In this instance, your requests fail under Rule 3.31(c)(2)(i) and (iii) because the burden on ECM is

extraordinary when compared to the relative benefit you get from documents that only confirm the notes in ECM’s

database.   

  

I hope this sheds light on our concerns so that we can develop a joint resolution.  Please let us know if you have any

questions, or if you would like to discuss.

  

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | 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. 

From: Johnson, Katherine [mailto:kjohnson3@ftc.gov]  

Sent: Thursday, January 09, 2014 1:02 PM

To: Peter Arhangelsky

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo'

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents

Peter:

I appreciate the clarification that this document was not prepared for litigation, and reflects records as maintained in the

ordinary course of ECM’s business.  The reason I described them as “unrepresentative” is because you informed us that

the document contains only 8,540 separate notes out of 142,078.  We have no idea how you or ECM selected the 8,540

notes that were produced.  Do these represent the complete log of all communications with all of ECM’s potential

customers during that timeframe?  If not, what subset does this represent and how was it selected?

We stand by our position that we are entitled to all of the underlying communications with potential customers, not just

the summaries of those communications.  We are not trying to increase the burden on ECM or you.  One way to reduce

the burden is for ECM to produce its entire archived database subject to a clawback agreement for privileged or

protected documents.  If there is no way to partition the archive to give us only the portion that pertains to

PUBLIC DOCUMENT CCX-A:2 at 3
4

prospective/non‐current customers, then I think we need further discussion to understand how ECM maintains its

archived files.   

Katherine

_________________________________________ 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnson3@ftc.gov

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com] 

Sent: Thursday, January 09, 2014 10:39 AM 

To: Johnson, Katherine 

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Katherine,

Preliminarily, we note that our December 27th production was an initial disclosure.  As we stated in our response, we

intend to supplement that production with responsive documents, particularly after the ALJ resolves the pending

discovery dispute.  The summaries we produced come from ECM’s Microsoft Access database, and reflect the system by

which ECM logs files.  ECM employees are instructed to accurately input all relevant information from verbal and written

correspondence into the database.  ECM relies on those notations, not the original emails, to log activities and

discussions with external parties.  The summaries in ECM’s database were therefore entered in the ordinary course of

business.  I am confused by your use of the term “unrepresentative” to describe those entries.  Can you explain what

you meant before we reply directly on that point?  For instance, if you suggest that the summaries were prepared in

anticipation of litigation, or for litigation purposes, we can clarify that they were not.

To the extent the original emails exist, production of all such files imposes a considerable burden.  Bob Sinclair is

essentially the only ECM employee who can perform this task.  While ECM logs its correspondence in the notations we

produced, it does not sort the original files that are ultimately archived (which are rendered unnecessary to ECM by the

summary notations).  All original email files are initially transferred to a global correspondence folder where they remain

for a short time, and then eventually archived for backup.  To produce an email referenced in the notations, someone

must manually search all archived folders for keywords that hit on the original file.  That process is incredibly time

consuming, and would eventually yield volumes of cumulative documents (in the tens of thousands).  Production of “all

responsive documents” could therefore require weeks of Bob’s time at a substantial loss for ECM.  

If anything, our initial production evidences the exceptionally overbroad nature of your discovery requests.  We have

discussed this issue with you before, to wit, the fact that your overbroad requests reach every document in ECM’s

control.  You requested all documents related to “ECM Additives.”  Part of our pending motion for a protective order

seeks to limit the expansive nature of your document requests to a manageable level.  We had hoped that our recent

production would provide you enough information to narrow your requests, balancing your need for information with

ECM’s discovery burdens.  Your instant request for production of tens of thousands of documents, regardless of their

relevance, and at considerable expense to ECM, only supports our motion for a protective order.  For instance, rather

than select from a subset of the 900+ prospective customers disclosed, or a subset of documents by file type or

keyword, you have demanded everything, including emails that have nothing to do with the core issues in

controversy.  That approach also belies any claim that you would reasonably limit discovery of ECM’s existing customers

if given complete access.

PUBLIC DOCUMENT CCX-A:2 at 4
5

We are happy to discuss at some point this week.  Our position is that we have already sought relief from your

document requests and, until the ALJ rules on this pressing issue, your requests that are governed by that motion are

unwarranted.  If, on the other hand, you can suggest limiting principles designed to reach specific information, we can

discuss with our client the feasibility of proceeding.  I see no reason why we cannot agree to narrow discovery with

respect to the potential customers ECM just disclosed.

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | 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. 

From: Johnson, Katherine [mailto:kjohnson3@ftc.gov]  

Sent: Wednesday, January 08, 2014 1:45 PM

To: 'Lou Caputo'; Peter Arhangelsky

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents

Lou and Peter:

After reviewing the document production ECM‐FTC‐000648‐001859, we understand that these are summaries of

communications between individuals at ECM and potential customers.  You have requested that we select from this

incomplete, and potentially unrepresentative set of information to “ascertain which individual records [Complaint

Counsel] finds relevant and about which they desire further information and/or documentation.”  ECM must produce all

responsive documents and make available the actual communications, not just the summaries.

If you think this requires further discussion over the phone, please let me know what your availability is like tomorrow.

Katherine

_________________________________________ 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnson3@ftc.gov

From: Lou Caputo [mailto:lcaputo3@gmail.com] 

Sent: Friday, December 27, 2013 4:54 PM 

To: Johnson, Katherine; Jillson, Elisa; Cohen, Jonathan 

Cc: Jonathan Emord; Peter Arhangelsky 

Subject: ECM Response to FTC First Set of Requests for Production of Documents 

PUBLIC DOCUMENT CCX-A:2 at 5
6

Dear Katherine, 

 

Please find attached ECM’s Responses and Objections to your First Set of Requests for Production of 

Documents. Attachment A is also included. Attachment A contains material responsive to most all of your 

requests and is described further in ECM's pleading. Attachment A is over 1200 pages. ECM continues, 

however, to search for additional materials responsive to your Requests. 

 

I left a voicemail with Jonathan (Cohen) earlier this morning, but have not heard back. I wanted to speak with 

him about file formatting and his concerns noted in prior emails. The files produced in Attachment A are in 

PDF, which is how ECM maintains such records in the course of its regular business. 

 

I will be out of the office next week, but Peter is available to discuss how best to resolve file conversion issues. 

 

Please let us know if you have any questions. 

 

Thanks, 

 

 

Lou Caputo | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (602) 388-8901 | 

Facsimile: (602) 393-4361 | 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.

 

PUBLIC DOCUMENT CCX-A:2 at 6