ORIGINAL 

PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In tbe Matter of 

ECM Bio.Films, Inc., 

a corporati«>.n, also d/b/a 

Envir9plastics International 

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Docket No. 9358 

PUBLIC DOCUMENT 

COMPLAINT COlJNSEVS MOTION FOR LEAVE 

TO TAKE THE DEPOSITION OF ALAN JOHNSON 

Pursuant to Rule 3.2l(c)(2), Complaint Counsel requests leaY:e to take the deposition of 

Alan Johnson, a fact witness whom Respondent, ECM Biofilins, Inc. (''ECM"), identified on its 

final proposed witness lisL For the reasons set forth below, good cause exists to allow 

Comp~aint Counsel to take Mr. Johnson's deposition. 

BACKGROUND 

Mr. Johnson is the Laboratory Director for Northeast Laboratories, Inc. (''N<>rtheast''). 

ECM identified Mr. Johnson and another ~mployee of Northeast on its preliminary witness list. 

Accordingly, o.n May 9, 2014, pm-suantto Rule 3.33(c){l), Complaint Counsel took the 

deposition ofNortheast Labs' corporate designee, Alyssa Ullman. 

On its final proposed witness list, Respondent indicated that rather than rely on_ 

Northeast's deposition testimony', Respondent intends to introduce the testimony of Mr. Johnson. 

Complaint Counsel would like to notice Mr. Johnson's deposition for mid-July. Mr. Johnson is 

avrulable for a deposition at this time. 

ARGUMENT 

Rule 3.21(c)(2) provides, in relevant part, that the Administrative Law Judge "may, upon 

a showing of good cause, grant a motion to extend any deadline or time specified in this 
PUBLIC DOCUMENT 

scheduling order .. . . " 16 C.F.R. § 3.21(c)(2). When assessing whether good cause exists, the 

Administrative Law Judge "shall consider any extensions already granted, the length of the 

proceedings to date, the complexity of the issues, and the need to conclude the evidentiary 

heating and render an initial decisjonin a timely manner." !d. Good cause ex1sts to allow a 

deposition after the discovery deadline where the extension will not impact the trial date (or 

other deadlines), and where "the fact-finding process . . . will be better served by enabling the 

parties to develop a compl~te record." In re LabMD, Inc., No. 9357,2014 FTC LEXIS 87, at *2 

(Apr. 11, 2014). See also In re Evanston Northwestern Healthcare Corp., No. 9315, 2004 FTC 

LEXIS 158, at *2 (Sept. 21, 2004) (granting motion to take deposition of non-party after fact 

discovery cut-off). 

Good cause exists here, for three reasons. First, taking Mr. Johnson's deposition will not 

impact any of the deadlines 1n this matter. Second, Mr. Johnson's deposition is impottant to 

develop a complete record. Complaint CoWlSel understands that Mr. Johnson may offer 

testimony significantly different from the testimony ofNortheast on complex issues involving 

biodegradation testing that are relevant to ECM's substantiation (or lack thereof) for its 

biodegradable claims. Exploring any such differences via deposition will ensure a complete 

record and facilitate an efficient hearing in this matter. Third, Complaint Counsel acted with 

reasonable diligence by taking the deposition ofNortheast itself well within the discovery 

deadline, and eould not reasonably have foreseen that Mr. Johnson might offer testimony 

different from his employer"s. 
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CONCLUSION 

For these reasons, we respectfully ask the Court to grant Complaint Counsel's motion for 

leave to take the deposition of Alan Johnson. 

Dated: July 3, 2014 Respectfully submitted, 

Jonathan 

Kath~@ftc.gov) Cohen Gcohen2@ftc.gov) 

Arturo Decastro (adecastro@ftc.gov 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N. W. M-81 02B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; -3001 

Fax: 202-326-2551 
PUB·LIC DOCUMENT 

STATEMENT CONCERNING MEET AND CONFER 

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

counsel on July 2 and July 3, 2014 in a good faith effort to resolve by agreement the issues raised 

in Complaint Counsel's Motion to Take the Deposition of Alan Johnson. Complaint Counsel 

understands that Respondent's counsel opposes the taking ofMr. Johnson's deposition. 

Dated: July 3, 2014 Respectfully submitted, 

· Katherine Jofuison (kjohnson3@ftc.gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Arturo Decastro (adecastro@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; -2747; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMEI'I'T 

CERTIFICATE OF SERVICE 

1 hereby certify that on July 3, 2014, I caused a true and correct copy of the foregoing to 

be served as follows: 

One electronic copy to the Office of the Secretary, and one copy through the FTC's e-filing systelll! 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

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

Washington, DC 20580 

One electronic copy to Counsel_ for the Respondent: 

Jonathan W. Emord 

Emard & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Eric Awerbuch 

Emard & Associates, P;C. 

321 0 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: EAwerbuch@emord.com 

Date: July 3, 2014 

Peter Arbangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Jonathan 

Kath~hnsort3@ftc.gov) 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; -255l; -3001 

Fax: 202-326-2551