UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
Washington, D.C.

In the Matter of .

Docket No. 9358
ECM BioFilms, Inc.,
a corporation, also d/b/a PUBLIC
Enviroplastics International,

Respondent.

DECLARATION OF PETER ARHANGELSKY IN SUPPORT OF RESPONDENT
ECM’S MOTION FOR PROTECTIVE ORDER

In accord with 28 U.S.C. § 1746, I declare under penalty of perjury that the following is
true and correct:

1. J 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 Motion for a Protective Order.

2. Iam employed by the law firm Emord & Associates, P.C., which represents ECM
BioFilms in matters before the Federal Trade Commission. I am an attorney of record in the
above-captioned case.

3. Attached hereto are true and correct copies of emails between counsel on
February 4, 2014 and February 7, 2014 with respect to ECM’s proposed motion for a protective
order.

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

and correct. Executed this 13th day of February, 2014 in Chandler, Arizona.

Exh. RX-B



SUBPOENA DUCES TECUM

Provided by the Secretary of the Federal Trade Commission, and
Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010)

1. TO

Mark Fergusson

CEO

Down to Earth

2525 South King Street
Honolulu, Hl 96826

2. FROM

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

This subpoena requires you to produce and permit inspection and copying of designated books, documents (as defined in
Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in

the proceeding described in Item 6.

3, PLACE OF PRODUCTION

Federal Trade Commission
600 Pennsylvania Ave, NW, Mailstop M-8102B
Washington, DC 20580

4. MATERIAL WILL BE PRODUCED TO.
Elisa Jillson

5. DATE AND TIME OF PRODUCTION
February 12, 2014 at 9:00 A.M.

6. SUBJECT OF PROCEEDING

In the Matter of ECM Biofilms, Inc., Docket No. 9358

7. MATERIAL TO BE PRODUCED

See documents and materials identified on the attached Schedule,and Exhibits, including the Protective Order

Governing Discovery Material.

8. ADMINISTRATIVE LAW JUDGE

The Honorable D. Michael Chappell

Federal Trade Commission
Washington, D.C. 20580

9. COUNSEL AND PARTY ISSUING SUBPOENA

Complaint Counsel

Katherine Johnson (202) 326-2185
Jonathan Cohen (202) 326-2551
Elisa Jillson (202) 326-3001

DATE SIGNED SIGNATURE OF COUNSEL ISS'

1/24/ ao lure!

UBPOENA

GENERAL INSTRUCTIONS

APPEARANCE
The delivery of this subpoena to you by any method
prescribed by the Commission's Rules of Practice is
legal service and may subject you to a penalty
imposed by law for failure to comply. ~

MOTION TO LIMIT OR QUASH
The Commission's Rules of Practice require that any
motion to limit or quash this subpoena must comply with
Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), and in
particular must be filed within the earlier of 10 days after
service or the time for compliance. The original and ten
copies of the petition must be filed before the
Administrative Law Judge and with the Secretary of the
Commission, accompanied by an affidavit of service of
the document upon counsel listed in Item 9, and upon all
other parties prescribed by the Rules of Practice.

TRAVEL EXPENSES
The Commission's Rules of Practice require that fees and
mileage be paid by the party that requested your appearance.
You should present your claim to counsel listed in Item 9 for
payment. If you are permanently or temporarily living
somewhere other than the address on this subpoena and it
would require excessive travel for you to appear, you must get
prior approval from counsel listed in Item 9.

A copy of the Commission's Rules of Practice is available
online at http;/#bit . Paper copies are
available upon request.

This subpoena does not require approval by OMB under
the Paperwork Reduction Act of 1980.

E eae RVBE (rev. 1/97)

Page 3 of 18



REDACTED



Exh, RX-D

A complete copy of each document should be submitted even if only a portion of the
document is within the terms of the request. The document shall not be edited, cut, or
expunged in any way and shall include all covering letters and memoranda, transmittal
slips, appendices, tables or other attachments.

Each request includes any and all copies of the responsive document and, to the extent
applicable, preliminary drafts or documents that differ in any respect from the original or
final draft or from each other (e.g., by reason of differences in form or content or by
reason of handwritten notes or comments having been added to one copy of a document
but not the original or other copies thereof).

In the event that any document covered by this subpoena was in your possession or actual
or constructive custody or control and has been lost or destroyed, the document is to be
identified in writing as follows: addressee, person who prepared or authored the
document, date of preparation or transmittal, substance of the document and its subject
matter, number of pages, attachments, or appendices, all persons to whom distributed,
shown or explained, date of loss or destruction, and, if destroyed, the manner of
destruction, the reason for destruction, the persons authorizing destruction, and the
persons who destroyed the document.

If an objection is made to any request herein, all documents covered by the request not
subject to the objection should be produced. Similarly, if an objection is made to
production of a document, the portion of that document not subject to objection should be
produced with the portion objected to redacted and clearly indicated as redacted.

All objections to these requests or to any individual request must be raised in the initial
response or are otherwise waived.

Claims of Privilege: Pursuant to Federal Trade Commission Rules of Practice 3,38A, 16
CER. § 3.38A, if any documents are withheld from production on a claim of privilege or
any similar claims, you shall provide , not later than the date set for production of
materials, a schedule that describes the nature of the documents, communications, or
tangible things not produced or disclosed with sufficient detail to enable Complaint
Counsel to assess ¢ Claim of privilege. The schedule shall state individually for each
item withheld:

The custodian of the document;

The type of document, including any attachments (¢.g., letter, memorandum);
The date of the document;

The general subject matter of the document;

The sender, author, and all recipients of the document; and

The basis on which you contend you are entitled to withhold the document from
production.

PYLON

If only a part of a responsive document is privileged, all non-privileged parts must be
submitted.

Certification of Records of Regularly Conducted Activity: Attached as Exhibit B is a
Certification of Records of Regularly Conducted Activity, which may reduce the need to
subpoena you to testify at future proceedings in order to establish admissibility of the
documents produced in response to this subpocna. You are asked to exccute this
certification and provide it with your response.

4
Page 8 of 18



PUBLIC DOCUMENT

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.
In the Matter of
Docket No. 9358
ECM BioFilms, Inc.,
a corporation, also d/b/a PUBLIC

Enviroplastics International,

Respondent.

[PROPOSED] ORDER GRANTING RESPONDENT ECM BIOFILMS, INC.’S MOTION
FOR A PROTECTIVE ORDER

This matter having come before the Administrative Law Judge on February 17, 2014,
upon a Motion for a Protective Order (“Motion”) filed by Respondent ECM BioFilms, Inc.
(“ECM”) pursuant to Commission Rule 3.31(d), 16 C.F.R. § 3.31(d), for an Order protecting
ECM from Complaint Counsel’s discovery requests.

Having considered ECM’s Motion and all supporting and opposing submissions, and for
good cause appearing, it is hereby ORDERED that ECM’s Motion is granted and a protective
order is issued limiting Complaint Counsel as follows: Complaint Counsel shall not serve
nonparty discovery on (1) ECM’s top ten customer accounts, as set forth in ECM’s motion and
memorandum; and (2) Complaint Counsel is limited in the number of nonparty subpoenas that
may be served on ECM customers to thirty-five (35) such subpoenas, inclusive of the 11
customer subpoenas Complaint Counsel has already served.

ORDERED:

D. Michacl Chappell
Chicf Administrative Law Judge

Date:

il



ATTACHMENT RX-B:2

CONFIDENTIAL DOCUMENT SUBJECT
TO PROTECTIVE ORDER



Exh. RX-D

RETURN OF SERVICE

thereby certify that a duplicate original of the within
subpoena was duly served: (check the method used)

C inperson,

By Federal Express overnight mail, pursuant to Rule

@ by registered mail. 4.4 (a) (2) of the Federal Trade Commission's Rules of

Practice.
C: by leaving copy at principal office or place of business, to wit:

‘on the person named herein on:
January 29, 2014

(Ori, day, and year)

Attorney, Federal Trade Commission
(Oficial tty

Page 4 of 18



PUBLIC DOCUMENT

Jan. 10, 2014 Order, at 7; cf, Exh. RX-A:4. The loss of EEE directly from Complaint
Counsel’s subpoenas proves the harms no longer speculative, but real.

To prevent further ECM financial losses without sacrificing Complaint Counsel’s
opportunity to obtain probative evidence, ECM asks the Court to order Complaint Counsel not to
subpoena ECM’s and to limit the overall number of customer subpoenas
Complaint Counsel issues to 35, inclusive of the 11 already served.

ECM therefore seeks a protective order that bars Complaint Counsel from subpoenaing

the folowing I ECM cco.

FY ECM also seeks an overall limit of 35 customer subpoenas, inclusive of the
11 served to date.

Rule 3.31(c)(2) contemplates just this sort of tailored relief to avoid undue burden.

2013 sales data reveal that those customers are essential for ECM to remain a going concern.

See Exh. RX-A, at Jf 3-6. That is confirmed by ECM’s Chief Financial Officer. See Exh. RX-

C, at {1413 (Deol. of Ken ivan.



REDACTED



ler A. Arhangelsky
‘espondent's Counsel

i=)

Exh. RX-B



Peter Arhangelsky

From: Jonathan Emord

Sent: Friday, February 07, 2014 8:33 AM

To: Johnson, Katherine; Cohen, Jonathan; Peter Arhangelsky
Cc: Jillson, Elisa; Lou Caputo

Subject: RE: ECM Biofilms, No. 9358

Katherine, | thank you for that courtesy. If you deem particular correspondence necessary for expert preparation, | will
work with you to ensure a prompt response is given by us to achieve your preparatory objective in a way that will
eliminate or reduce anti-competitive effects. Sincerely, Jonathan

From: Johnson, Katherine [mailto:kjohnson3@ftc.gov]
Sent: Friday, February 07, 2014 10:28 AM

To: Jonathan Emord; Cohen, Jonathan; Peter Arhangelsky
Ce: Jillson, Elisa; Lou Caputo

Subject: RE: ECM Biofilms, No. 9358

Jonathan: While | don’t believe we have an obligation to expurgate that information, | see no reason why we would
need to share this with our experts, so in light of your client’s concerns, we will agree to do so. However, if there is a

particular correspondence that we believe should be shared with our experts, then we will have to revisit this issue.

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: Kiohnson3@fte.gov on
From: Jonathan Emord [mailto:JEmord@emord.com’

Sent: Friday, February 07, 2014 10:19 AM

To: Johnson, Katherine; Cohen, Jonathan; Peter Arhangelsky
Cc: Jillson, Elisa; Lou Caputo

Subject: RE: ECM Biofilms, No, 9358

Importance: High

Katherine: We will send the following notice to the clerk momentarily in light of your decision to withdraw the motion
to compel:

Following a meet and confer with Complaint Counsel, we are informed that Complaint Counsel intends to file a notice of
withdrawal of its motion to compel by the end of today. In light of receipt ot that representation trom Complaint
Counsel, the need for ECM to file a surreply is obviated and no further ECM pleading will be submitted.

Concerning tests by ECM customers or tests, studies, and analyses relied upon by ECM, we agree that evidence of that
sort may be shared with your experts, provided that you limit the experts’ access ta that very information and expurgate
all associated customer correspondence which is not a part of the test, study, and analyses. When in doubt on this
point, we welcome hearing from you and will respond promptly with our view of the matter.

1
Exh. RX-B:3



Peter Arhangelsky

From: Peter Arhangelsky

Sent: Thursday, February 06, 2014 9:03 AM

Te ‘Johnson, Katherine’

Ce: ‘Jillson, Elisa’; ‘Cohen, Jonathan’; jemord@emord.com; Lou Caputo
Subject: No. 9358; ECM Revenues

Attachments: ECM-FTC-004363-4366.pdf

Counsel,

Please find attached Respondent's customer-specific revenue list supplied to you in advance of the deadline specified in
the court’s February 4th Order.

Sincerely,

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 confidentia! 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.

Exh, RX-B:1



ATTACHMENT RX-C:2

CONFIDENTIAL DOCUMENT SUBJECT
TO PROTECTIVE ORDER



REDACTED



PUBLIC DOCUMENT

Complaint Counsel. ECM’s production of its email files includes all such communications

| SYS It includes all marketing and promotional material exchanged with all its
customers (not just those identified by Complaint Counsel for subpoena). It includes all testing
and scientific data conveyed to ECM’s sophisticated consumers in support of ECM claims. In
sum, the information contained within ECM’s own files is every piece of material content
exchanged with its customers. All information sought by Complaint Counsel in subpoenas from

ECM’s customers is thus redundant and cumulative.

B. The Probative Value of Discovery from the EE Customers Is
Substantially Outweighed by the Undue Burden Imposed on ECM

The | | customers that ECM seeks to exclude from Complaint Counsel’s subpoenas
are financially indispensable to ECM, and all correspondence from ECM to those fj customers
and from those | | customers to ECM is being supplied to Complaint Counsel by ECM as
rapidly as possible. See Exh. RX-B:2 (by February 21, 2014). That less burdensome alternative
is precisely of the kind contemplated by Rule 3.31(c)(2) (discovery “shall be limited” when “the
discovery sought from a party is ... obtainable from some other source that is more convenient,
less burdensome, or less expensive”). The rules specifically provide for the limitation of
discovery even when the targeted information is otherwise accessible under Rule 3.31(c)(1).

The loss of any of ECM’s EN will harm ECM irreparably and will deny
ECM the financial wherewithal it needs to afford a legal defense in these proceedings. See Exh.
RX-A, at ff 3-11.

C. It is Reasonable to Impose an Overall Limit on the Number of Subpoenas
Complaint Counsel May Serve on Existing ECM Customers

Given the fact of business loss as a direct result of Complaint Counsel’s first 11



REDACTED



As we discussed this afternoon, | have attached our discovery letter. Please inform us if you have questions. Should we
fail to agree by tomorrow at Noon Eastern, we will be obliged to file our Surreply. However submission of that brief
should not limit our ability to reach an agreement on these points.

Sincerely,

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 sirictly confidential and provide it to the person intended. Duplication or distrioution 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: Cohen, Jonathan [mailto:jcohen2 @ftc.gov)
Sent: Thursday, February 06, 2014 4:32 PM

To: Peter Arhangelsky; Jonathan Emord

Ce: Jillson, Elisa; Johnson, Katherine

Subject: RE: ECM Biofilms, No. 9358

Counsel,

(1) Do we have your agreement to the terms of the joint motion (along with Peter’s clarification at 1:47
EST this afternoon), even if the Court will not accept the motion now?

(2) As it’s a joint motion, do we have your consent to withdraw it?

Jonathan Cohen
Enforcement Division | Bureau of Consumer Protection | Federal Trade Commission
600 Pennsylvania Avenue, N.W., M-8102B Washington, D.C. 20580

(202) 326-2551 | jcohen2@fic gov

From: Pelzer, Lynnette

Sent: Thursday, February 06, 2014 5:23 PM
To: Cohen, Jonathan; Jillson, Elisa; Johnson, Katherine; Arhangelsky, Peter; Emord, Jonathan
Cc: Arthaud, Victoria; Gebler, Hillary; Gross, Dana

Subject: RE: ECM Biofilms, No. 9358

Dear Counsel,

Per Judge Chappell, the above pending joint motion is too speculative or uncertain at this time to be granted. However,
to alleviate the parties’ concerns, in the event the discovery deadilne needs to be extended at some point, a Joint
motion at that time will be considered favorably. Accordingly, the best practice at this time would be for the parties to
file a Notice of Withdrawal of this pending joint motion.

From: OAL)

Sent: Thursday, February 06, 2014 3:52 PM

To: Arthaud, Victoria; Gebler, Hillary; Pelzer, Lynnette
Subject: FW: ECM Biofilms, No. 9358

Exh. RX-B:3



PUBLIC DOCUMENT

representing in excess of 100,000 pages of documentation painstakingly extracted from PDF
files. The information that has been produced and is being produced is substantially redundant
of what Complaint Counsel has requested in subpoenas issued to ECM customers. See Exh. RX-
D (demand requests contained in every one of Complaint Counsel’s customer subpoenas to date).

On February 5, 2014, ECM agreed to provide Complaint Counsel additionally all of its
emails, attachments, facsimiles, and other responsive files, consisting of all ECM
<oespon di in
negating the need for the subpoenas. That production is taking place now and embraces a
universe of over 100,000 pages of documents. On February 6th, ECM supplied Complaint
Counsel with the customer specific revenues that were the subject of contest ruled upon by the
Court on February 4th, and on February 17th, ECM cooperatively worked with Complaint
Counsel to supplement that production with customer specific revenues from every account
outside the United States.

In short, the information ECM is producing to Complaint Counsel will include
substantially the same information Complaint Counsel seeks in its third party subpoenas, to wit,
ee : marketing materials provided by ECM; and
testing materials or science provided by ECM. See Exh. RX-D (Subpoena to Down to Earth).

ECM has agreed with Complaint Counsel, and hereby reiterates its willingness, to extend
the discovery deadlines as necessary to March 20, 2014, to ensure that Complaint Counsel has
adequate time to evaluate the massive correspondence production ECM now has underway. Ata
minimum, that production should be received and evaluated by Complaint Counsel before it

proceeds cn massc in subpocnaing ECM’s customers.



PUBLIC DOCUMENT

On January 29, 2014, Complaint Counsel began serving 11 subpoenas on ECM’s
prospective and former customers. See RX-A:3. A few days thereafter (see Exh. RX-C), one
end user of an ECM customer, notified ECM’s customer by email that it would
no longer order products made with ECM’s additives as a direct result of its receipt of Complaint

Counsel’s subpoena:

On February 3, 2014, Complaint Counsel notified ECM of its intent to subpoena an
additional 35 customers. See Exh. RX-A:5. And on February 4th, Complaint Counsel informed

ECM that it would subpoena 15 more. See Exh. RX-B:2 at 7. ECM hereby objects specifically

to four (4): those Complaint Counsel plans to serve immediately upon
ee
ee)
Three of those customers rank in the top five ECM accounts. The loss of any one will cause
irreparable financial injury, imperiling ECM’s business and denying ECM the financial
wherewithal it needs to defend itself in these proceedings. See RX-A, at Jf 3-6; Exh. RX-C, at
49 4-13.

ECM has opened up all of its to Complaint Counscl, having produced all
of its extensive contemporaneous data base summations of all emails, faxes, and phone I

2:0 22cing despite an

extraordinary production burden to produce all of the underlying emails and faxes themselves,



EXHIBIT B (RX-B)

CONFIDENTIAL DOCUMENT SUBJECT
TO PROTECTIVE ORDER



PUBLIC DOCUMENT

ARGUMENT:
A. The discovery sought from ECM Customers Is Obtainable from ECM Directly
Complaint Counsel served 11 subpoenas on ECM’s prospective and former customers.
The document requests in those subpoenas were identical with minor variations. See, e.g., Exh.
RX-C. In short, Complaint Counsel seeks all documents possessed by ECM customers that are
related to ECM BioFilms. See RX-B:2.

As of February 17, Complaint Counsel has received from ECM all of ECM’s database

summations, including every one of 20,000
De. from January 1, 2009 to December 31, 2013. Among those records are
ones pening EE ches
provided Complaint Counsel with more than 20,000 pages i. By
agreement, ECM will produce the remainder of i IT (totaling over

100,000 pages) in rolling production as rapidly as the documents can be retrieved and prepared
by counsel.

In a February 5 meet and confer with Complaint Counsel, ECM specifically offered to
supply Complaint Counsel in addition to its database summations for these accounts all of its
underlying email ee. despite the extraordinary
production burden (the underlying documents must be extracted from PDF files). Complaint
Counsel accepted that approach in fulfillment of ECM’s outstanding discovery obligations. See
RX-B:3. In customer subpoenas, Complaint Counsel seeks “communications with ECM,”
“marketing materials provided by ECM,” “testing materials or scientific or product information
provided by ECM,” and “testing documents regarding the ECM Additive.” See Exh. RX-D.

That is the very same information contained in ECM’s files that are being produced by ECM to



REDACTED



ORIGINAL

PUBLIC DQ

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSIG
OFFICE OF THE ADMINISTRATIVE LAW JUDQES
Washington, D.C.

5697/9
Secacrapy

In the Matter of
Docket No. 9358
ECM BioFilms, Inc.,
a corporation, also d/b/a
Enviroplastics International, PUBLIC
Respondent.

RESPONDENT ECM BIOFILM’S MOTION FOR PROTECTIVE ORDER
Respondent, ECM BioFilms, Inc. (“ECM”), hereby moves this Court for an Order

establishing reasonable limits on Complaint Counsel’s issuance of subpoenas to ECM customers.

The order sought snes
The order sought prevents imposition of an undue burden on ECM’s business while
preserving Complaint Counsel’s legitimate need for discovery of relevant information.
In ruling on a prior ECM motion to limit customer based discovery, his Honor deemed

the harms recited speculative. See Jan. 10, 2014 Order, at 7. The proof is no longer speculative.

Po The information Complaint Counsel is obtaining by its

customer subpoenas is redundant of what ECM is producing to Complaint Counsel.

Complaint Counsel plans to subpoena 35 more ECM customers immediately and an

additional 15 thereafter. See Exhibit RX-A:5. [iS
eS

which it cannot remain a going concern. See RX-A:1.

- nes —-

rm

02 2 21 "2014

%,
cA



OMITTED


DATED this 17th day of February 2014.

PUBLIC DOCUMENT

EMORD & ASSOCIATES, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937
Facsimile: 202-466-6938



PUBLIC DOCUMENT

subpoenas, it is reasonable to impose an overall numerical limit on the number of subpoenas
issued (here 35 inclusive of the 11 already served) and to exclude ECM accounts
essential for its financial survival and its financing of a legal defense. Indeed, one would be hard
pressed to conceive of a higher degree of proof needed to justify imposition of limits under FTC
Rule 3.31(c)(2) & (d) and, if no limits are prescribed given this circumstance, Rule 3.31(c)(2)

will be rendered a nullity.

CONCLUSION:

For the foregoing reasons, ECM hereby requests that this Court order that the following
| customer accounts upon which ECM depends for financial survival not be the
subject of subpoenas and that, instead, discovery related to those accounts be exhausted from the
correspondence files possessed by ECM relative to each (and by volitional means by ECM

obtaining additional information from those customers as a proxy for FTC if necessary): ||

I 64 2s0 2s hts

Honor impose an overall numerical limit on the number of subpoenas Complaint Counsel may
issue to ECM customers, recommending that the number not exceed 35, inclusive of the 11

already served and not to include the aforementioned top accounts.

Respectfully submitted,

/s{ Jonathan W. Emord

Jonathan W. Emord (jemord@emord.com)



Exh. RX-D

“ECM Additive” means the plastic additive manufactured by ECM, including but not
limited to “Masterbatch Pellets.”

“ECM Plastic” means any plastic treated with or incorporating an ECM Additive.

“Electronically Stored Information” or “ESI” shall mean the complete original and any
non-identical copy (whether different from the original because of notations, different
metadata, or otherwise), regardless of origin or location, of any information created,
manipulated, communicated, stored, or utilized in digital form, requiring the use of
computer hardware or software. This includes, but is not limited to, text messages,
electronic mail, instant messaging, videoconferencing, and other electronic
correspondence (whether active, archived, or in a deleted items folder), word processing
files, spreadsheets, databases, and video and sound recordings, whether stored on: cards;
magnetic or electronic tapes; disks; computer hard drives, network shares or servers, or
other drives; cloud-based platforms; cell phones, PDAs, computer tablets, or other mobile
devices; or other storage media, “ESI” also includes such technical assistance or
instructions as will enable conversion of such ESI into a reasonably usable form.

“Include” and “including” mean “without limitation,” or “including but not limited to,”
so as to avoid excluding any documents or information that might otherwise be construed
to be within the scope of any specification.

“Referring to,” “relating to,” or “related to” shall mean discussing, describing,
reflecting, containing, analyzing, studying, reporting, commenting, evidencing,
constituting, setting forth, considering, recommending, concerning, or pertaining to, in
whole or in part.

“You” and “Your” means Down to Earth.

INSTRUCTIONS

Applicable time period: Unless otherwise directed in the specifications, the applicable
time period for the request shall be from January 1, 2007, until the date of full and
complete compliance with this subpoena.

Petitions to Limit or Quash: Pursuant to Commission Rule of Practice 3.34(c), any
motion to limit or quash this subpoena must be filed within ten days of service hereof.

Protective Order: On October 22, 2013, the Court entered an order governing discovery
material in this matter. A copy of the Protective Order is attached hereto as Exhibit A
with instructions on the handling of confidential information.

Sensitive Personally Identifiable Information: If any material called for by these
Specifications contains sensitive personally identifiable information or sensitive health
information of any individual, please contact us before sending those materials to discuss
ways to protect such information during production or whether it would be appropriate to
tedact the sensitive information.

Page 6 of 18



EXHIBIT C (RX-C)

CONFIDENTIAL DOCUMENT SUBJECT
TO PROTECTIVE ORDER



From: Cohen, Jonathan

Sent: Thursday, February 06, 2014 3:51:37 PM
To: OALJ

Cc: Jillson, Elisa; Johnson, Katherine

Subject: ECM Biofilms, No. 9358

Auto forwarded by a Rule

Please see the attached Joint Motion To Reset the Fact Discovery Deadline, and an accompanying
transmittal letter. We have forwarded hard copies as well.

Thanks,
Jonathan Cohen

Enforcement Division | Bureau of Consumer Protection | Federal Trade Commission
600 Pennsylvania Avenue, N.W., M-8102B Washington, D.C. 20580

(202) 326-2551 | jcohen2@ftc.gov

Exh, RX-B:3



PUBLIC DOCUMENT

At ECM’s request, Complaint Counsel has represented that it will refrain from serving

ECM customers with subpoenas pending this Court’s resolution of the instant dispute.

LEGAL STANDARD:

Commission Rule 3.31(d) authorizes the court to issue protections for “a party or other
person” against improper discovery, including subpoenas. See 16 C.F.R. § 3.31(d). Respondents
have standing to challenge nonparty discovery to the extent that discovery threatens to harm the
respondent. See In re Horizon Corp., 88 F.T.C. 208, at 4.5 (July 28, 1976). The Commission
most recently explained in November that “the scope of discovery is limited and a court is
obliged to enforce such limitations to protect the rights of a party, even where the discovery is
directed at nonparties.” See In the Matter of LabMD, Inc., A Corp., Respondent., 9357, 2013
WL 6327986 (F.T.C. Nov. 22, 2013).

Rule 3.31(c)(2) explains that the “. . . use of the discovery methods otherwise permitted
under these rules shall be limited by the Administrative Law Judge if he or she determines that:
(i) [t]he discovery sought from a party or third party is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less burdensome, or less
expensive; ... or (iii) [t]he burden and expense of the proposed discovery on a party or third
party outweigh its likely benefit.” See 16 C.F.R. § 3.31(c)(2) (emphasis added). Courts should
thus limit discovery where compliance “threatens to unduly disrupt or seriously hinder normal

operations of a business.” See F.T.C. v. Texaco, Inc., 555 F.2d 862. 882. (N.C. Cir. 1977).



ATTACHMENT RX-B:1



Exh. RX-D

United States of America

FEDERAL TRADE COMMISSION
Katherine Johnson Elisa Jillson
600 Pennsylvania Ave. NW, M-8102B 600 Pennsylvania Ave. NW, M-8102B
Washington, DC 20580 Washington, DC 20580 .
, 202) 326-2185; kjohnson3@fte.gov (202) 326-3001; ejillson@ftc.gov

Jonathan Cohen

600 Pennsylvania Ave, NW, M-8102B
Washington, DC 20580

(202) 326-2551; jcohen2@ftc.gov

January 29, 2014
VIA FED E

Down to Earth

c/o Mark Fergusson, CEO
2525 South King Street
Honolulu, HI 96826
(808) 947-7678

Re: In the Matter of ECM BioFilms, Inc, Dkt. No. 9358
- Subpoena Duces Tecum to Down to Earth

Dear Mr. Fergusson:

The Federal Trade Commission (“FTC”) has recently initiated an adjudicative proceeding
against ECM BioFilms, Inc., Docket No. 9358. The Commission Rules of Practice state that
“counsel for a party may sign and issue a subpocna on a form provided by the Secretary of the
Commission, commanding a person to produce and permit inspection and copying of designated
books, documents, or tangible things. 16 C.F.R. § 3.34(b). This letter is to notify you that
Complaint Counsel has issued a subpoena duces tecum for certain of Down to Earth’s
documents. The subpoena with attached schedule and exhibits is enclosed.

On October 22, 2013, the Federal Trade Commission’s Office of the Administrative Law
Judges issued a Protective Order Governing Discovery Material (“Protective Order”) in the
above-referenced action, The Protective Order protects confidential materials from discovery in
the case. A copy of the Protective Order signed by Chief Administrative Law Judge D. Michael
Chappell is enclosed as an exhibit to the subpoena’s schedule.

Any documents you produce to the Commission that are confidential must include the
notice “CONFIDENTIAL — FTC Docket No. 9358” in accordance with the Protective Order. If
you produce confidential documents in electronic or other media, you may place the

“CONFIDENTIAL — FTC Docket No. 9358” designation on the CD.

Page 1 of 18



Please call at your earliest convenience to discuss any issues regarding production. You
may reach me at (202) 326-3001.

Sincerely,

Elisa Jillson
Complaint Counsel

Enclosures

Exh. RX-D Page 2 of 18



Sincerely,

Jonathan W. Emord

From: Johnson, Katherine [mailto:kiohnson3 @ftc.gov’
Sent: Friday, February 07, 2014 10:08 AM

To: Jonathan Emord; Cohen, Jonathan; Peter Arhangelsky
Ce: Jillson, Elisa; Lou Caputo

Subject: RE: ECM Biofilms, No. 9358

Jonathan:

Thank you for the clarification. Based on the corrections and clarifications below, we agree to withdraw our motion to
compel. | can’t promise it will be done by noon, but we can notify the Court by the end of the day.

However, we need clarify one point. By designating the material confidential it becomes “attorneys eyes only.” This
includes, under paragraph 7 of the protective order, “personnel retained by the Commission as experts or consultants
for this proceeding.” Thus, to the extent that the Email Archive yields documents that our experts in this case would
need to consider in forming their opinions, e.g., tests conducted by ECM customers, they will be shared with our
experts.

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: kiohnson3@ftc.gov . ee . .
From: Jonathan Emord [mailto:JEmord@emord.com
Sent: Friday, February 07, 2014 9:56 AM

To: Cohen, Jonathan; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine; Lou Caputo
Subject: RE: ECM Biofilms, No. 9358

Importance: High

Dear Jonathan:

Concerning your interest in obtaining international customer correspondence, we have conferred with our client and
can represent on ECM’s behalf that it will be providing you with all of its correspondence with international customers
and all of its customer specific revenue information with those customers, to the extent not already supplied, for the
period between January 1, 2009 and the present. We hereby correctively amend our email of yesterday to delete the
word “domestic.”

Second, to the extent ECM still has internal email files, those will be included in the email archives that will be
produced. If ECM employees did not include their emails in the archived correspondence PDFs, ECM will not have those
records. Furthermore, as Peter stated, ECIM’s internal written correspondence is generally limited.

2
Exh. RX-B:3



PUBLIC DOCUMENT

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
Washington, D.C.

In the Matter of
Docket No. 9358
ECM BioFilms, Inc.,
a corporation, also d/b/a
Enviroplastics International, CONFIDENTIAL

Respondent.

RESPONDENT ECM BIOFILM’S MEMORANDUM IN SUPPORT OF MOTION FOR
PROTECTIVE ORDER

Respondent ECM BioFilms, Inc. (“ECM”) hereby moves for an Order placing reasonable
limits on Complaint Counsel’s subpoenas to ECM customers, limits tailored to prevent
devastating financial losses to ECM that will threaten its economic survival and its ability to

finance a legal defense in these proceedings. Despite pledging to self-impose reasonable limits

on discovery, Complaint Counsel has widened its scope of discovery
ee Complaint Counsel plans to
subpoena 35 more ECM customers immediately atop 11 it subpoenaed the week of January 29th.
Of the 11 subpoena
ee. That loss comes atop the loss of two

additional accounts, American Plastic Manufacturing, Inc. and MacNeill Engineering Company,
in the pre-Complaint stage directly following contacts by Complaint Counsel (and before those
same companies entered into consent agreements with the agency) and the production of the
Sigma Plastics Group for all their US customers. In ruling on a prior ECM motion to limit

customer based discovery, this Court denied relief deeming the harms recited speculative. See



SPECIFICATIONS
Demand is hereby made for the following documents: H
(1) Provide all documents regarding ECM and the ECM Additive, including:

i
any communications with ECM; H
any marketing materials provided by ECM; |
any testing materials or scientific or product information provided by ECM; \
any testing documents regarding the ECM Additive; i
any internal communications regarding the ECM Additive; :
any communications with third parties regarding the ECM Additive; i
any marketing materials for your products containing the ECM Additive {
regarding biodegradability. :

mene gp

Respectfully submitted, :

Katherihe Fohinson :
Jonathan Cohen :
Elisa Jillson 1
Division of Enforcement

Bureau of Consumer Protection
Federal Trade Commission

600 Pennsylvania Ave., NW, M-8102B j
Washington, DC 20580 |
Telephone: (202) 326-2185 4
Facsimile: (202) 326-2558 |
Email: kjohnson3@ftc.gov |

Exh. RX-D ; Page 9 of 18

?



Exh. RX-D

For purposes of these requests, sensitive personally identifiable information includes: an
individual’s Social Security number alone; or an individual’s name or address or phone
number in combination with one or more of the following: date of birth, Social Security
number, driver’s license number or other state identification number, or a foreign country
equivalent, passport number, financial account number, credit card number, or debit card
number, Sensitive health information includes medical records and other individually
identifiable health information relating to the past, present, or future physical or mental
health or conditions of an individual, the provision of health care to an individual, or the
past, present, or future payment for the provision of health care to an individual.

Scope of Search: This subpoena covers documents and information in your possession
or under your actual or constructive custody or control including, but not limited to,
documents and information in the possession, custody, or control of your attorneys,
accountants, directors, officers, partners, employees, and other agents and consultants,
whether or not such documents and information were received from or disseminated to.
any person or entity.

Document Production: You shall produce the documentary material to Katherine
Johnson, Federal Trade Commission, 600 Pennsylvania Ave., NW, M-8102B,
Washington, DC 20580. Because postal delivery to the Commission is subject to delay
due to heightened security precautions, please use a courier service such as Federal
Express or UPS. Please see the attached Bureau of Consumer Protection Production
Guide for detailed instructions for submitting ESI or digitally imaged hard copies. Please
mark the exterior of all packages containing electronic media sent through the U.S. Postal
Service or other delivery services as follows:

MAGNETIC MEDIA - DO NOT X-RAY
MAY BE OPENED FOR POSTAL INSPECTION.

Documents that may be responsive to more than one specification of this subpoena need
not be submitted more than once; however, your response should indicate, for each
document submitted, each specification to which the document is responsive. If any
documents responsive to this subpoena have been previously supplied to the
Commission, you may comply with this subpoena by identifying the document(s)
previously provided and the date of submission. Documents should be produced in the
order in which they appear in your files or as electronically stored and without being
manipulated or otherwise rearranged; if documents are removed from their original
folders, binders, covers, containers, or electronic source in order to be produced, then the
documents shall be identified in a manner so as to clearly specify the folder, binder,
cover, container, or electronic media or file paths from which such documents came. In
addition, number by page (or file, for those documents produced in native electronic
format) all documents in your submission, preferably with a unique Bates identifier, and
indicate the total number of documents in your submission.

Production of Copies: Unless otherwise stated, legible photocopies (or electronically
rendered images or digital copies of native electronic files) may be submitted in lieu of
original documents, provided that the originals are retained in their state at the time of
receipt of this subpuena. Further, copies of originals may be submitted in lieu of
originals only if they are true, correct, and complete copies of the original documents;
provided, however, that submission ofa copy shal! constitute a waiver of any claim as to
the authenticity of the copy should it be necessary to introduce such copy into evidence in
any Commission proceeding or court of law; and provided further that you shall retain the
original documents and produce them to Commission staff upon request.

3

Page 7 of 18



PUBLIC DOCUMENT

STATEMENT CONCERNING CONFIDENTIALITY
The undersigned Respondent’s Counsel hereby states that the content of the foregoing
motion and certain exhibits contain information properly designated “confidential” under the
standing Protective Order in this case, including competitively sensitive information.

Accordingly, ECM hereby submits a public version with the exhibit content redacted.

DATED: February 21, 2014.

/s/ Jonathan W. Emord
Jonathan W. Emord
EMORD & ASSOCIATES, P.C.
11808 Wolf Run Lane
Clifton, VA 20124
Telephone: 202-466-6937

12



EXHIBIT A (RX-A)

CONFIDENTIAL DOCUMENT SUBJECT
TO PROTECTIVE ORDER



PUBLIC DOCUMENT

investigation, two ECM customers, American Plastic Manufacturing, Inc. and MacNeill
Engineering Company, ceased doing business with ECM (that before Complaint Counsel entered

into consent orders with those companies). On February 3rd, as a direct result of Complaint

Counsel’s issuance of its first 11 subpoenas to ECM customers, nn
FY That pattern is destined to continue imperiling ECM unless this

Court imposes reasonable limits on Complaint Counsel’s customer subpoenas.

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



EXHIBIT D (RX-D)


ATTACHMENT RX-B:3



PUBLIC DOCUMENT

ECM does not here oppose customer subpoenas in their entirety; rather ECM seeks a
reasonable limit to their total number and an exclusion therefrom of ECM’s customer
accounts. ECM seeks a limit of 35, inclusive of the 11 already sent, and excluding ECM’si
El. This is a measured reduction, calculated to avoid loss of relevant information
while ensuring that ECM may remain financially solvent during these proceedings (such that it

inay continue to finance its own legal defense against the charges brought). PF

ee
ee
ee. but also agreeing despite an extraordinary
production burden to produce all of the underlying emails and faxes themselves, representing in
excess of 100,000 pages of documentation painstakingly extracted from PDF files.

The information that has been produced and is being produced is substantially redundant
of what Complaint Counsel has requested in subpoenas issued to ECM customers. See Exh. RX-
D (demand requests contained in every one of Complaint Counsel’s customer subpoenas to date).

On February 5, 2014, ECM agreed to provide Complaint Counsel additionally all of its emails,

attachments, facsimiles, and other responsive files, consisting (iii
I 5 222125 he no0d for be

subpoenas. That production is taking place now and embraces a universe of over 100,000 pages
of documents. On February 6th, ECM supplied Complaint Counsel with the customer specific
revenues that were the subject of contest ruled upon by the Court on February 4th.

On February 3rd, Complaint Counsel informed ECM that it intends to subpoena an

additional 35 ECM customers. See RX-A:5. Following Complaint Counsel’s pre-complaint


ATTACHMENT RX-C:1

CONFIDENTIAL DOCUMENT SUBJECT
TO PROTECTIVE ORDER



UNITED STATES OF AMERICA.
BEFORE THE FEDERAL TRADE COMMISSION

Enviroplastics International

PUBLIC

)
In the Matter of )

)
ECM BioFihns, Inc., ) Docket No. 9358
a corporation, also d/b/a )

)

)

COMPLAINT COUNSEL’S SCHEDULE FOR PRODUCTION OF DOCUMENTS
PURSU. T [BPOENA

Pursuant to Complaint Counsel’s attached Subpoena Duces Tecum issued January 29,

2014, under Commission Rule of Practice § 3.34(b), Complaint Counsel requests that the
following materials be produced to the Federal Trade Commission, 600 Pennsylvania Ave, NW.
Mailstop M-8102B, Washington, DC 20580.

DEFINITIONS

“And,” as well as “or,” shall be construed both conjunctively and disjunctively, as
necessary, in order to bring within the scope of any Specification all information that
otherwise might be construed to be outside the scope of the specification.

“Any” shall be construed to include “all,” and “all” shall be construed to include the
word “any.

“Communication” includes, but is not limited to, any transmittal, exchange, transfer, or
dissemination of information, regardless of the means by which it was accomplished, and
includes all communications, whether written or oral, and all discussions, meetings,
telephone communications, ur email contacts.

“Document” shall mean the complete original and any non-identical copy (whether
different from the original because of notations on the copy or otherwise), regardless of
origin or location, of any written, typed, printed, transcribed, filmed, punched, or graphic
matter of every type and description, however and by whomever prepared, produced,
disseminated or made, including but not limited to any advertisement, book, pamphlet,
periodical, contract, correspondence, file, invoice, memorandum, note, telegram, report,
record, handwritten: note, working paper, routing slip, chart, graph, paper, index, map,
tabulation, manual, guide, outline, script, abstract, history, calendar, diary, agenda,
minute, code book or label. “Document” shall also inchide Electronically Stored
Information.

“ECM?” shall mean ECM Biofilms, Inc., including without limitation, its agents, -
employees, officers, or anyone else acting on its behalf.

Exh. RX-D Page 5 of 18



Please note, under the protective order in this case, we designate all of the correspondence between ECM and its
customers as well as the revenue listings as highly confidential. We note, in particular, that this information cannot be
shared with experts, particularly in light of the fact that almost all experts in this field have direct or indirect fiduciary
duties to or financial ties with competitors of ECM.

| hope this answers your questions, Please let me know on or before Noon Eastern today if you will withdraw the
pending motion to compel. If you decide against that course, or if we do not hear from you by Noon Eastern, we will file
the surreply shortly thereafter.

Sincerely,

Jonathan W. Emord

From: Cohen, Jonathan [mailto:jcohen2@ftc.gov

Sent: Thursday, February 06, 2014 8:12 PM

To: Peter Arhangelsky

Ce: Jillson, Elisa; Johnson, Katherine; Jonathan Emord; Lou Caputo
Subject: RE: ECM Biofilms, No. 9358

Peter,
Two quick questions (and my co-counsel may have others):

(1) What’s the basis for limiting the production to “domestic” ECM customers? You didn’t mention that limit this
afternoon.

(2) I understand you've indicated that there may be very few internal communications. However, to the extent they
exist, are they all included within the “customet correspondence files” you desctibe in the second paragraph?

Thanks,

Jonathan Cohen

Enforcement Division | Bureau of Consumer Protection | Federal Trade Commission
600 Pennsylvania Avenue, N.W., M-8102B Washington, D.C. 20580

(202) 326-2551 | jcohen2@ftc.gov

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

Sent: Thursday, February 06, 2014 7:42 PM

To: Cohen, Jonathan

Cc: Jillson, Elisa; Johnson, Katherine; Jonathan Emord; Lou Caputo

Subject: RE: ECM Biofilms, No. 9358

Counsel:

We agree to the terms of the joint motion, even if the court will not accept it. You also have our consent to withdraw
the joint motion.

Exh. RX-B:3



PUBLIC DOCUMENT

STATEMENT CONCERNING MEET AND CONFER

The undersigned counsel certifies that Respondent’s counsel conferred with Complaint
Counsel in a good faith effort to resolve by agreement the issues raised by Respondent’s Motion
for a Protective Order dated February 17, 2014. On February 4th and 5th, Respondent’s Counsel
(Peter A. Arhangelsky and Jonathan W. Emord) and Complaint Counsel (Katherine Johnson)
communicated by email about this motion. On February 5th, Respondent’s Counsel (Peter A.
Arhangelsky) and Complaint Counsel (Katherine Johnson, Elisa Jillson, and Jonathan Cohen)
corresponded by telephone. The parties further negotiated the issues presented in the foregoing
motion through email correspondence, and they have been unable to reach an agreement on the

issue raised in the attached motion.

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

10



PUBLIC DOCUMENT

CERTIFICATE OF SERVICE

Thereby certify that on February 21, 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 to the Office of the Secretary:

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) _ Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission Federal Trade Commission
600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW
Mail stop M-8102B Mail stop M-8102B
Washington, D.C. 20580 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 partics and adjudicator consistent with the
Commission’s Rules.

DATED: February 21, 2014
/s/ Jonathan W. Emord
Jonathan W. Emord
EMORD & ASSOCIATES, P.C.
11808 Wolf Run Lane
Clifton, VA 20124
Telephone: 202-466-6937

13