fu the Matter of 

ORIGINAL 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

ECM BioFihns, fuc., 

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DOCKET NO. 9358 

a c01poration, also d/b/a 

Enviroplastics futemational, 

Respondent. 

ORDER ON COMPLAINT COUNSEL'S MOTION 

FOR A PROTECTIVE ORDER AND RESPONDENT'S 

CROSS-MOTION TO REVISE PROTECTIVE ORDER 

On April 21, 2014, Federal Trade Commission ("FTC") Complaint Counsel filed an 

Emergency Motion for Protective Order ("Motion") requesting a mling in advance of ce1iain 

nonpmiy depositions scheduled to begin on April 28, 2014. On April23, 2014, Respondent filed 

an Opposition to Complaint Cmmsel's Motion and a Cross-Motion to Revise the Protective 

Order ("Opposition and Cross-Motion"). On April23, 2014, Complaint Cmmsel filed its 

Response to Respondent's Cross-Motion to Modify Protective Order ("Response"). As 

explained below, the Motion is GRANTED IN PART and DENIED IN PART. The CrossMotion is DENIED, except as explained herein. 

I. Positions of the Parties 

Complaint Cmmsel has issued subpoenas requesting documents and deposition testimony 

from various nonpmiies and has scheduled depositions for Island Plastic Bags, Down to Ea1ih, 

and FP futemational ("the nonpmiies"). Complaint Counsel states that these nonpmiies 

designated documents they produced in response to Complaint Counsel's subpoenas as 

"confidential." Motion at 2. Complaint Counsel fmiher states that Respondent's counsel has 

advised Complaint Counsel that ECM's Chief Executive Officer, Robe1i Sinclair, will appear at 

the depositions of these nonpmiies. !d. at 1. Complaint Counsel asserts that, pursuant to the 

Protective Order Goveming Confidential Material issued in this case on October 22, 2013 

("Protective Order"), nonpa1iy infonnation that has been designated as "confidential" cannot be 

disclosed to ECM itself (as opposed to ECM's outside counsel), or to any of ECM's officers and 

employees, including Mr. Sinclair. !d. at 1-2. Complaint Counsel seeks an order requiring that 

the depositions be divided into confidential and nonconfidential segments based on the 

designations that exist when the depositions begin, and allowing ECM's officers and employees 

to attend only the nonconfidential p01iions of the depositions. 
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Respondent asserts that, in an effort to limit the costs of attending depositions of 

nonparties, ECM has elected to appear pro se at the nonparty depositions, through Mr. Sinclair, 

with Respondent’s counsel “supporting” Mr. Sinclair, by telephone, remotely from counsel’s 

offices, “only when examination warrants exclusion of Mr. Sinclair to protect the deponents’

trade secret or proprietary information for which competitive injury could reasonably result.”

Opposition and Cross-Motion at 3. Respondent requests that the Protective Order be revised to:

(1) permit ECM to receive and examine deponents concerning documents and information 

authored by ECM or disclosed to ECM that a deponent has designated as “confidential”; (2) 

permit deponents to designate sensitive documents (such as trade secrets and information 

proprietary to them for which disclosure to ECM could cause competitive injury) as “Attorneys 

Eyes Only” (“AEO”), which will not be shared with ECM; and (3) having established a separate 

AEO designation, revise Paragraph 7 of the Protective Order to permit ECM’s counsel to share 

“confidential” documents with ECM. Id. at 4.

Complaint Counsel, in its Response, asserts that ECM should not be allowed to appear in 

this matter both pro se, through Mr. Sinclair, and through counsel that have entered appearances 

in this case. Response at 1. Complaint Counsel further asserts that such dual representation 

implicates a number of troubling ethical issues, such as communication with a represented party 

and possible violation of lawyer-as-witness rule. Id.

II. Provisions of the Protective Order

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

improper use and disclosure of confidential information, the Administrative Law Judge shall 

issue a protective order as set forth in the appendix to this section.” 16 C.F.R. § 3.31(d). 

Pursuant to Commission Rule 3.31(d), the protective order set forth in the appendix to that 

section was issued in this case on October 22, 2013.

Provisions of the Protective Order relevant to the instant dispute are:

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

thereof that contains privileged information, competitively sensitive information, or 

sensitive personal information. . . .

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

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

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

statute or regulation, or under any federal court or Commission precedent interpreting 

such statute or regulation, as well as any information that discloses the substance of the 

contents of any confidential materials derived from a document subject to this Order, 

shall be treated as confidential material for purposes of this Order. . . . 

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

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

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. . . .
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5. A designation of confidentiality shall constitute a representation in good faith and after 

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

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order.

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

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

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

folder or box, the designation “CONFIDENTIAL – FTC Docket No. 9358” or any other 

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

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

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

placing the designation “CONFIDENTIAL – FTC Docket No. 9358” or any other 

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

medium on which the document is produced. . . . 

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

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

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

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

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

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

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

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

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

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

who may have authored or received the information in question.

III. Complaint Counsel’s Motion

Complaint Counsel states that “Down to Earth orally requested that its documents receive 

confidential treatment.” Motion, CX-A ¶ 2. Complaint Counsel also states that “many 

[nonparties] responded [to its subpoenas] without counsel (including Island Plastic Bags and FP 

International), and they may not have understood the precise process associated with designating 

material ‘confidential.’” Motion at 2 n.4. Complaint Counsel acknowledges that nonparties 

have over-designated materials as confidential. Motion at 7 n.16; see also Motion at 2 n.4 

(characterizing requests for confidentiality as “arguably defective”).

The Protective Order sets forth the requirements for designating materials produced as 

“confidential.” Significantly, a nonparty cannot designate documents as “confidential” without 

good faith and a careful determination that (a) the material is not reasonably believed to be 

already in the public domain and that (b) counsel believes the material so designated actually 

constitutes confidential material as defined in Paragraph 1 of the Protective Order. Protective 

Order ¶ 5. According to Respondent, the nonparties have designated all of their documents 

confidential. Respondent notes, for example, that documents designated by FP International as 

“confidential” include marketing literature intended for public dissemination. Opposition and 

Cross-Motion at 6. Publicly disseminated marketing materials cannot be considered 
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“confidential.” Thus, the nonparties did not have a good faith basis for designating all of their 

material “confidential,” as confidential material is defined under the Protective Order.

The Protective Order also sets forth the mechanisms for designating materials produced 

as “confidential.” An oral request does not satisfy the requirements of Paragraph 6 of the 

Protective Order. See Protective Order ¶ 6 (mechanisms for designating material as confidential 

include “placing on or affixing to the document containing such material . . . or if an entire 

folder or box of documents is confidential by placing or affixing to that folder or box, the 

designation ‘CONFIDENTIAL – FTC Docket No. 9358’ or any other appropriate notice . . .”). 

The Protective Order was issued to protect the rights of parties and nonparties from 

disclosure of their confidential information, by limiting disclosure to only the narrow set of 

persons listed in Paragraph 7 of that Order. It does not give parties or nonparties the right to 

assert that every document produced is “confidential.” If nonparties wish to avail themselves of 

the protections of the Protective Order, they must comply with the requirements of that Order.

Complaint Counsel, as the party who served the subpoenas on the nonparties, shall, in 

consultation with Respondent’s counsel, work with the nonparties prior to their depositions to 

ensure that the nonparties have designated as “confidential” only those documents that actually 

are confidential, as defined in the Protective Order. Once this review of documents has been 

completed, such that the only documents designated as “confidential” are, in fact, confidential as 

defined under the Protective Order, as to such properly designated documents, the Protective 

Order will prohibit disclosure to ECM’s officers and employees, including Mr. Sinclair, except 

as explained below. Thus, Complaint Counsel’s Motion is GRANTED IN PART.

Even as to properly designated confidential documents, Paragraph 7(e) of the Protective 

Order allows disclosure to “any witness or deponent who may have authored or received the 

information in question.” Protective Order ¶ 7(e). Thus, Mr. Sinclair, as a named witness in this 

proceeding, may attend portions of the nonparty depositions relating to documents that ECM

authored or previously received, regardless of the confidentiality of the documents.

In addition, Complaint Counsel’s request that the nonparty depositions be divided into 

confidential and nonconfidential segments “based on the designations that exist when the

deposition begins” is DENIED. This request to micro-manage the parties’ depositions is 

rejected. However, as the party conducting the depositions, Complaint Counsel should organize 

deposition questions regarding confidential documents in a manner that minimizes disruptions in 

the depositions. 

IV. Respondent’s Cross-Motion

In its Cross-Motion, Respondent seeks to have the Protective Order revised to create two 

categories of documents, Attorney Eyes Only documents, which would not be shared with ECM 

representatives, and “confidential” documents, which could be shared with ECM representatives. 

This request is DENIED.

The Protective Order allows access to and review of confidential materials by “outside 

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

firm(s), provided they are not employees of a respondent.” Protective Order ¶ 7(c) (emphasis 

added). Thus, absent the revision requested by ECM, the Protective Order prohibits employees 
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of Respondent from having access to nonparties’ confidential materials. In In re McWane,

respondent sought to revise the protective order to enable its in-house counsel to review 

confidential materials and provided an affidavit averring that its in-house counsel was not 

involved in competitive decision-making. In re McWane, Inc., 2012 FTC LEXIS 140 (Aug. 8, 

2012). There, because the nonparties responding to subpoenas had a right to expect that the 

documents they designated as “confidential” would be treated as confidential under the terms of 

the protective order and because respondent failed to articulate any reason for failing to request 

access to confidential information for in-house counsel earlier in the case, prior to the production 

of confidential information by these nonparties, or to assert any special circumstances that might 

justify a deviation from the standard protective order language, respondent’s motion was denied. 

Id. at *3-4. The reasoning for denying such request is even stronger in this case, where Mr. 

Sinclair has not claimed that he is not involved in competitive decision-making.

In addition, Respondent’s request to revise the Protective Order to permit ECM to receive 

and examine deponents concerning documents and information authored by ECM or disclosed to 

ECM is DENIED. As noted above, Mr. Sinclair, as a named witness in this proceeding, may 

attend portions of the nonparty depositions relating to documents that ECM authored or 

previously received, regardless of the confidentiality of the documents. Accordingly, the 

requested revision is unnecessary.

Respondent’s Cross-Motion includes two other requests for relief that have not been 

addressed above. First, Respondent asks that Complaint Counsel be ordered to produce a list of 

documents to be used at each deposition so that Respondent can evaluate the propriety of the 

confidentiality designations and seek judicial intervention if necessary. Opposition and CrossMotion at 2. This request is DENIED as untimely and unworkable under the circumstances 

presented. As set forth above, the parties shall work with the nonparties so that the nonparties

properly narrow the documents designated as confidential in advance of the depositions.

Second, Respondent seeks a ruling which would allow deponents to offer a limited 

waiver of confidential designations for purposes of allowing Mr. Sinclair to attend the 

depositions without effecting a general waiver of the confidential status of their documents.

Opposition and Cross-Motion at 2. This request is DENIED. In the event that any of the 

“confidential documents” are offered as exhibits in the trial in this matter, the nonparties will 

have the opportunity to file motions for in camera treatment to have their confidential materials 

withheld from the public record. Those motions must show that the documents that the 

nonparties seek to have withheld from the public record meet the strict standards for in camera

treatment. Scheduling Order Additional Provisions, ¶ 7; see 16 C.F.R. § 3.45. If such motions 

are filed, they will be evaluated using those standards. Id. Whether or not the nonparties waive 

their confidentiality designations for purposes of allowing Mr. Sinclair to attend the depositions 

has no effect on whether or not their in camera treatment motions, if filed, will be granted.

Except as explained above, Respondent’s Cross-Motion is DENIED.

V. Representation by Mr. Sinclair

Respondent, in its Opposition and Cross-Motion, states that it intends for Mr. Sinclair to 

not only attend the depositions, but also to appear pro se, with outside counsel supporting him by 

telephone only when examination warrants exclusion of Mr. Sinclair to protect confidential 
information. Opposition and Cross-Motion at 3. Respondent argues that excluding ECM's 

representative from the deposition room for extended periods of time or for entire depositions 

would "violat[e] ECM's right to appear prose under Rule 4.l(a)(2)." ld. at 7. 

Complaint Counsel objects to Mr. Sinclair being allowed to appear both pro se and by 

counsel and asserts that allowing Mr. Sinclair to conduct a deposition or represent ECM at the 

hearing when he already has counsel and when he is a primary witness would be disruptive and 

complicate the depositions and these proceedings generally. Response at 1. 

Commission Rule 4.1(a)(2) states: "[a) corporation or association may be represented by 

a bona fide officer thereof upon a showing of adequate authorization." 16 C.F.R. § 4. 1(a)(2). In 

this regard, it should be noted that Mr. Sinclair has not filed an appearance in this matter, or 

made the required showing of authorization under Rule 4.1. In contrast, Jonathan Emord, Peter 

Arhangelsky, and Lou Caputo have each filed a Notice of Appearance in this case. They are the 

only representatives of record at this time. 

However, even if Mr. Sinclair was considered an authorized "prose" representative of 

ECM, the Protective Order. entered in this case would still prohibit Mr. Sinclair from accessing 

confidential materials. The Protective Order provides that only "outside counsel of record for 

any respondent, their associated attorneys and other employees of their law firm(s),provided 

they are not employees of a respondent" may view confidential information produced in this 

case. Protective Order~ 7(c); 16 C.F.R. § 3.31 Appendix A (emphasis added). As discussed 

above, even in-house counsel are not permitted access to confidential materials under the 

Protective Order. Mr. Sinclair cannot abrogate this clear prohibition of disclosing nonparties' 

confidential information directly to Respondent by simply asserting that he is representing 

himself pursuant to Commission Rule 4.1 (a)(2). Moreover, because ECM is represented by 

outside counsel who can protect ECM's rights in the depositions ofnonparties, there is no 

likelihood that ECM will suffer prejudice as a result of Mr. Sinclair's being excluded from the 

depositions at times when confidential information is discussed. 

VI. Conclusion 

For the reasons set forth above, Complaint Counsel's Motion is GRANTED IN PART 

and DENIED IN PART. Respondent's Cross-Motion is DENIED, except as explained above. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: April24, 2014 

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