ORIGINAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF THE ADMINISTRATIVE LAW JUD 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

RESPONDENT'S OPPOSITION TO COMPLAINT COUNSEL'S 

MOTION FOR SANCTIONS 

Respondent, ECM BioFilms, Inc. ("ECM"), hereby opposes Complaint Counsel's Motion 

for Sanctions filed January 22, 2014. The ordering paragraph on page 9 of this Court's January 

10, 2014 Order compelled ECM to produce to Complaint Counsel all of its customer names by 

January 16, 2014. ECM complied with that order, delivering the full list of names to Complaint 

Counsel on January 16. See CompL Exh. CCX-A:l. The January 10 Order does not compel 

production of revenues per customer. On that basis alone, the motion for sanctions fails because 

the necessary predicate of a production order is missing. Moreover, the underlying interrogatory 

propounded by Complaint Counsel, Interrogatory No.2, seeks: "For each customer or 

distributor identified in Interrogatory 1, list ECM's revenue per customer or distributor per year." 

CompL Exh. CCX-A:3. That very information ECM supplied to Complaint Counsel on January 

20. Finally, Complaint Counsel has withheld the material fact that ECM has agreed with 

Complaint Counsel to supply its entire database of contemporaneous summations of every email, 

facsimile, and phone call with every ECM customer since January 1, 2009, which includes all 

notations concerning every verbal, facsimile, or email contact with every customer. From that 

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information Complaint Counsel can determine everything it needs to know about the typicality, 

subject matter, and frequency of claims made to every customer. There is therefore no basis for 

sanctions, and Complaint Counsel's instant motion is not made in good faith. 

BACKGROUND 

On November 26th, Complaint Counsel served Respondent with interrogatories. 

Interrogatory No. 1 asked ECM to identify all of its customers. See Compl. Mot. for Sanctions, 

Ex. CCX-A:3. Interrogatory No.2 requested," ... ECM's revenue per customer or distributor 

per year." !d. ECM timely objected to those requests on December 3, 2013, just days after 

receiving Complaint Counsel's submission (Complaint Counsel served the discovery requests the 

day before Thanksgiving). In meet and confer conversations on December 5th (and several 

times thereafter), Complaint Counsel categorically refused to limit its discovery in any 

substantive way. ECM therefore sought a protective order on December 13,2013, more than 

two weeks before its deadline to respond to Complaint Counsel's discovery requests. See ECM 

Mot. for Protective Order (Dec. 13, 2013). ECM replied timely to Complaint Counsel's 

discovery requests on December 23rd and 27th, but took the position that provision of customer 

discovery was premature until his Honor ruled on ECM's motion for a protective order. 

On January 10, his Honor denied ECM's motion for a protective order, and granted 

Complaint Counsel's cross-motion to compel production ofECM's customer names. See Order 

Denying Resp.'s Mot. for Prot. Order (Jan. 10, 2014). By its express terms, that Order is limited 

to Complaint Counsel's first interrogatory: 

Complaint Counsel's Cross-Motion to Compel docs not seek uny relief 

beyond obtaining Respondent's complete customer list, as encompassed by 

Interrogatory 1, above. Thus, it does not appear that Complaint Counsel's 

Cross-Motion to Compel is directed at Interrogatories 2 or 6, or Document 

Request 13. 

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I d. at 2; see also id. at 9 (ordering only that "Respondent shall provide a complete customer list 

as requested by Complaint Counsel's Interrogatory 1 ... no later than January 16, 2014"). In 

ordering ECM to release its customer names, his Honor relied on Complaint Counsel's 

representation that they would cooperate with Respondent's Counsel in specific ways: (1) to 

"choose a subset of ... customers and limit [their] contacts to this subset" and (2) to "limit [the 

discovery] in a manner that conserves both parties resources." I d. at 7 (citing Complaint 

Counsel's Reply); id. at 8 ("Complaint Counsel responds that it is prepared to negotiate ... to 

reduce the number of responsive materials"). 

Out of court, Complaint Counsel has not limited its discovery as it promised to the court. 

ECM is a small company wit~ of whom bear principal responsibility for locating 

all responsive documents. Despite the fact that customer discovery was premature until this 

Court's January 10, 2014 Order, and that ECM has been willing to disclose substantial 

documents concerning its interactions with customers, Complaint Counsel has erroneously 

painted ECM as a non-compliant party. Following his Honor's January 10, 2014 Order, ECM 

timely provided its entire customer list to Complaint Counsel. On January 20, 2014, ECM 

provided a list of revenues for each of its customers identified in response to Complaint 

Counsel's Interrogatory No. 1. The revenues are a complete set of receipts for all ECM 

customers from January 1, 2009 to the December 31,2013. 1 See CCX-A:2. 

In a meeting with Complaint Counsel on January 16,2014, ECM pledged to produce its 

entire database of customer correspondence, which includes a contemporaneously recorded 

1 Complaint Counsel now argues that it never agreed to a temporal limitation through 

2009. Yet in the email exhibit attached as CCX-A:4, at 1, Complaint Counsel clearly states that 

they would accept a January 1, 2009 limitation. Complaint Counsel did not object to that 

temporal limitation in any meet and confer meeting had between the parties when ECM stated 

that temporal limitations were necessary to limit ECM's discovery burden. 

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summation of every ECM client interaction (e.g., every email, facsimile, and telephone call) had 

with every ECM customer since January 1, 2009. See RX-A, Declaration ofR. Sinclair, at~ 7. 

The database notes are the most accurate and comprehensive compilation of information 

concerning ECM's interactions with its customers, and they reveal the frequency and substance 

of all client contacts. The database is in fact an extraordinary daily compilation of relevant data, 

which includes information few other small companies maintain in their ordinary course of 

business. ECM pledged to gather all of that information and provide it to Complaint Counsel 

between January 31,2014 and March 15,2014. The day following that agreement, Complaint 

Counsel filed this instant motion for sanctions. Complaint Counsel makes no mention of that 

agreement in their motion. 

ARGUMENT 

"[S]anctions under Rule 3.38 should be imposed only if (I) production of the requested 

material has been mandated by a subpoena or specific discovery order issued by an ALJ or the 

Commission and directed at the party (or its officer or agent) from whom the material is sought; 

(2) the party's failure to comply is unjustified; and (3) the sanction imposed 'is reasonable in 

light of the material withheld and the purposes of Rule 3.38(b). "' In the Matter of Osf 

Healthcare Sys., A Corp., & Rocliford Health Sys., A Corp .. , 9349,2012 WL 665030 (F.T.C. 

Feb. 22, 2012) (emphasis added). Here the Court should deny Complaint Counsel's motion 

because (1) ECM did not violate a "specific discovery order;" (2) ECM's January 20th 

production of revenue information is a complete response to Complaint Counsel's actual 

Interrogatory 2 and was entirely consistent with the January 1Oth Order; and (3) the sanctions 

Complaint Counsel request are unreasonable. 

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A. Complaint Counsel's Motion Lacks A Necessary Factual Predicate 

Because ECM Has Not Failed To Comply With A Discovery Order 

By its express terms, this Court's January 10 Order is limited to Complaint 

Counsel's Interrogatory 1, which asks for a complete list ofECM's customer names. 

ECM complied with that Order when, on January 16, it supplied Complaint Counsel the 

complete listing. Consequently, the essential foundation for sanctions predicated on the 

notion that ECM did not comply with the Court's January 10 Order is missing. 

Second, the other request Complaint Counsel propounded to ECM, Interrogatory No. 2, 

asks for precisely what ECM has supplied to Complaint Counsel. That interrogatory asks for a 

"list [of] ECM's revenue per customer or distributor per year" for "each customer or distributor 

identified in Interrogatory 1." See Campi's Mot. for Sanctions, Exh. CCX-A:3. ECM provided 

its list ofECM's revenue per customer or distributor per year since January 1, 2009. See id. at 

Exh. CCX-A:2. It has not created a document that supplies information tying each revenue 

generated to a named customer, nor is it obliged to create such a document. 

Third, there is no order in place commanding ECM to produce the precise document to 

which Complaint Counsel says it is entitled. The January 10, 2014 order on counsel's motion to 

compel commands ECM to produce its complete list of customer names only. ECM did that by 

January 16th, as required by the Order. 

Fourth, to the extent the Order discussed ECM's production of revenue related 

information, it concluded that the information was relevant to the issue of damages. See Jan. 10 

Order at 7-8. The ECM list of revenues it has supplied to Complaint Counsel gives all revenue 

totals needed for a damages calculation, which are sufficient to identify the volume ofECM sales 

overtime. 

Fifth, to the extent the January 10 Order discussed a more general relevance of the 

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revenue-related information, it was as a means to help identify customer-specific claims or the 

frequency of communication with customers. Complaint Counsel did not inform the Court of the 

material fact that ECM has agreed to disclose its contemporaneous summation of every ECM 

customer interaction (email, phone, and fax), which provides all specific claims for every 

customer every day from January 1, 2009 to the present, thus fulfilling that evidentiary need 

precisely. That evidence will be supplied January 31 and March 15 as per agreement with 

Complaint Counsel, long before the close of discovery. Even were Complaint Counsel correct in 

its assumption that ECM corresponds differently or more frequently with larger customers, that 

would be revealed to Complaint Counsel through ECM's contemporaneous summation database. 

B. Complaint Counsel's Request for Relief Conflicts With 

Representations Made to This Court 

To the extent the January 1 0 Order discussed the burden imposed on ECM by production 

of customer-related information, his Honor trusted Complaint Counsel's promise in its Reply to 

lessen that burden. See Jan. 10 Opinion and Order, at 4, 7, 8. Before the Court, Complaint 

Counsel made that pledge but out of Court Complaint Counsel has reneged on it, failing despite 

repeated ECM requests to identify any subset of customers or any appropriate limit on the scope 

of discovery that would lessen ECM's burden. See Compl. Exh. CCX-A:4, at 2. Tn the 

alternative, rather than limiting discovery requests to reasonable levels, Complaint Counsel has 

proposed that ECM hire a third party litigation consultant at substantial cost to the company to 

manage thr. r.xtrr.mc production hurdens imposed hy Complaint Counsel's document requests 

which seek literally every file ECM has in its possession. 

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C. The Relief Requested by Complaint Counsel Is Not Commensurate with the 

Discovery Issues Presented 

The relief requested in Complaint Counsel's motion is calculated to maximize the 

prejudicial impact on ECM' s case and alleviate the burden of proof on Complaint Counsel under 

the statutory standard ofproofin these cases. See 16 C.F.R. § 3.43(a) ("[C]ounsel representing 

the Commission ... shall have the burden of proof'); FTC v. Garvey, 383 F.3d 891, 901 (9th Cir. 

2004) (citing FTC v. Pantron I, 33 F.3d 1088, 1096 (9th Cir. 1994). Complaint Counsel seeks to 

bar ECM from contesting whether the customers Complaint Counsel selects are somehow 

representative, and limit ECM' s arguments concerning remedies. That relief is unreasonable 

because it conflicts with the statute and invites a misprision of justice through decisional bias. 

The relief would resolve issues of fact in Complaint Counsel's favor, when such a remedy is 

plainly inconsistent with and disproportionate to any purported prejudice (left unarticulated) that 

could be experienced by Complaint Counsel. 

First, the revenue information released by ECM is already adequate to determine 

potential damages, because it reveals precisely the amounts paid by each customer to ECM since 

January 1, 2009. 

Second, Complaint Counsel has not shown that the revenue information it now seeks is 

necessary to develop a "representative" sample ofECM customer contacts, not when counsel has 

ECM' s entire customer list and will soon have a database replete with contemporaneous 

summations of every ECM email, facsimile, and phone call since January 2009. Complaint 

Counsel argues that it needs more revenue intormation to "take discovery quickly, to ensure a 

represenlalive l::uslomer sample, and lo address issues associated with the potential remedy.'' 

Compl. Mot. at 1. That statement is belied by the fact that by agreement with Complaint 

Counsel, ECM is supplying its entire database of contemporaneous customer contacts, in 

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substantially the same format as those contacts excerpted in Exhibit A to ECM's earlier-filed 

Opposition to Complaint Counsel's Cross-Motion to Compel (Dec. 31, 2013). 

Third, Complaint Counsel ignores the palpable burden ECM suffers when Complaint 

Counsel causes all ofECM's major customers to become entangled in this dispute, deviating 

from Complaint Counsel's clear promise to this Court that it would contact only a subset of all 

customers identified by ECM. Complaint Counsel has not explained why the less burdensome 

alternative of the database entries along with witness testimony and evidence gleaned from a 

subset of ECM customers is not sufficient to vet fully the claims made, or identify representative 

customers, particularly because the claims concerning biodegradation are substantively and 

materially indistinguishable customer to customer, a fact that should be apparent when 

Complaint Counsel reviews ECM's database files. Complaint Counsel does not explain why 

tying revenues to each specific customer is reasonably demanded when through discovery it will 

possess all information needed to know precisely what claims were made to each customer 

served by ECM from January 1, 2009 forward. 

In light of the fact that the database entries, not revenues, are the best evidence of ECM 

interactions with its customers, and the corresponding absence of any sound basis for the indirect 

revenue evidence, there remains only one possible motive for Complaint Counsel's insistence on 

ECM' s creation of a customer associated revenue listing: to choose targets for subpoena based 

on amount of payment made to ECM, not content of claims made by ECM. That illegitimate 

choice enables Complaint Counsel to intimidate ECM's principal accounts and cause present and 

substantial business disruption and economic injury to ECM before any adjudication of fault and 

without judicial temperament to constrain the injury. ECM draws 

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See RX-A, at~ 3. 

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after the FTC publicized its action against ECM. ld. at~ 4. ECM's ongoing 

financial burden outweighs Complaint Counsel's desire to target top accounts solely for the sake 

of expeditious discovery. See id. at ~~ 5-7. Justice demands that this illegitimate abuse of 

discovery be stopped consistent with the limitations in Rule 3.3l(c)(2). 

CONCLUSION 

For the foregoing reasons, Respondent respectfully requests that his Honor deny 

Complaint Counsel's Motion for Sanctions. 

DATED this 31st day of January 2014. 

9 

Respectfully submitted, 

Is/ Jonathan W Emard 

Jonathan W. Emard Gemord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

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STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent's Counsel hereby states that the content of certain exhibits 

referenced in the foregoing Opposition contain information properly designated "confidential" 

under the standing Protective Order in this case. Accordingly, ECM submits this public redacted 

version with content redacted. 

DATED: January 31,2014. 

10 

Is/ Jonathan W. Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
PUBLIC DOCUMENT 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 4, 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 through thee-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Jonathan Cohen Gcohen2@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 A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

I 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. 

DATF.D: Fehnmry 4, 2014 

11 

lo;/ Jcmathan W Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
RX-A 

(EXHIBIT A) 

CONFIDENTIAL DOCUMENT SUBJECT TO 

PROTECTIVE ORDER 
CONFIDENTIAL 

In tbe Matter of 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICEOFTHEADMINISTRATIVELAW JUDGES 

Washington, D.C. 

Docket No. 9358 

ECM BioFilms, Inc., 

a corporation, also dlb/a 

Enviroplastics International, 

CONFIDENTIAL 

Respondent. 

DECLARATION OF ROBERT SINCLAIR 

I, ROBERT SINCLAIR. under penalty of perjury, hereby state as follows: 

1. I am over the age of eighteen years and I make this affidavit on personal 

knowledge of its contents and in further support of Respondent's Opposition to Complaint 

Counsel's Motion to Compel. 

2. I am the President and Chief Executive Officer ofECM BioFilms. Inc., an Ohio 

company founded in 1998. As ECM's President and CEO, I have personal knowledge ofECM's 

daily operations. 

3 . 

.. 

~e Attachment A. 

4. 

See Attachment B. 

5. 

A copy of 

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CONFIDENTIAL 

ECM' s latest fmancial statement is attached as Attachment B. 

6. ECM' s customers are aware of the FTC case, and the consent decrees the FTC 

obtained against two of ECM' s customers. Having experienced the expense and time necessary 

to address even an inquiry from the FTC directly, 

-

7. ECM logs and maintains summation records of every email, facsimile, and phone 

call with every one of its customer accounts in its Microsoft Access Database. See Attachment C 

(excerpted database notes). That information includes all customer interactions, including all 

claims made by email, facsimile, and phone by ECM to each client. 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjmy that the foregoing is true 

and correct. Executed this 27th day of January, 2014. 

R~------~ 

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