PUBLIC

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

RESPONDENT ECM BIOFILM’S MOTION FOR LEAVE TO FILE REPLY TO 

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENT’S MOTION TO RECESS 

THE TRIAL OR BEGIN THE TRIAL WITH ITS EXPERT

Pursuant to Commission Rules 3.22(d) Respondent, ECM BioFilms, Inc. (“ECM”) 

hereby requests leave to file the attached Reply (Exh. A). A Reply is warranted in light of the 

following:

1. Since ECM filed its motion for a recess, the parties had material discussions 

concerning the resolution of this dispute. Complaint Counsel referenced ECM’s position in their 

Opposition brief, but omitted material information, and even chose not to include ECM’s email 

correspondence on the issue, which was necessary for a full and complete exhibit.

2. Complaint Counsel raises new points concerning Dr. Stewart’s “availability” to 

testify, and Complaint Counsel’s unworkable alternative proposal, which are based on 

unsupported (and incorrect) assumptions, and to which ECM should have an opportunity to 

respond. 

Rule 3.22(d) permits Reply pleadings with leave of Court, where that pleading would 

draw the Court’s attention to recent important developments. For the foregoing reasons, 

explained more fully in ECM’s Reply brief attached, good cause exists for grant of this motion in 

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07 21 2014
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that it ensures a full record of argument on a substantial dispute that, if resolved against ECM, 

threatens to exclude major components of ECM’s defense. ECM respectfully requests that the 

Court receive and file the attached Reply.

Respectfully submitted,

 

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

DATED: July 21, 2014

2
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STATEMENT CONCERNING MEET AND CONFER

Pursuant to Rule 3.22(g), 21 C.F.R. § 3.22(g), the undersigned counsel certifies that, on 

July 21, 2014, Respondent’s counsel attempted to confer with Complaint Counsel via e-mail and 

via telephone in a good faith effort to resolve by agreement the issues raised in the foregoing 

Motion. Complaint Counsel failed to respond to Respondent’s counsel. 

Respectfully submitted,

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

3
PUBLIC

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 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 the e-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

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov

Arturo Decastro

Division of Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: adecastro@ftc.gov

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.

4
PUBLIC

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

DATED: July 21, 2014

5
PUBLIC

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

RESPONDENT ECM BIOFILM’S REPLY TO COMPLAINT COUNSEL’S 

OPPOSITION TO RESPONDENT’S MOTION TO RECESS THE TRIAL OR BEGIN 

THE TRIAL WITH ITS EXPERT

Respondent ECM BioFilms, Inc. (“ECM”) hereby submits this Reply to Complaint 

Counsel’s Opposition to ECM’s Motion to Recess the Trial or Begin the Trial with Its Expert. In 

its Opposition, Complaint Counsel omits key information concerning ECM’s correspondence on 

this matter. Complaint Counsel has been entirely inflexible, refusing to offer any reasonable 

option that would permit Dr. Stewart’s testimony. Instead, without demonstrating any real 

prejudice to its case, Complaint Counsel has attempted to profit from this unfortunate scheduling 

issue, and essentially preclude ECM’s key expert from offering testimony. ECM hereby 

addresses two key points in Complaint Counsel’s Opposition.

First, Complaint Counsel suggests that ECM’s failure to bring this issue before the court 

months ago is “dispositive.” Not so. Complaint Counsel offers no argument or reasoning 

explaining how or why ECM’s requested relief before this Court would be any different had it 

brought this motion weeks ago. The parties have noticed the appearance of already eight expert 

witnesses, and two more hang in the balance following motions pending before this court. The 

schedule for the hearing is uncertain. Witnesses may receive only 48 hours’ notice before their 

1
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appearance is required before the court. RX-A, at ¶ 21. ECM explained in its opening brief that, 

by Commission Rule 3.41(b), the hearing may consume thirty 7-hour trial days for a total of 210 

hours. That means, excluding weekends and holidays, the parties should have anticipated that 

the hearing could span until Wednesday, September 17, 2014. Dr. Stewart has said he would be

available the week of August 27, 2014, well within the period under which the hearing might still 

be in session. ECM could not have determined whether a possible conflict might arise and, 

indeed, it is unsure if one will occur. ECM filed its motion out of an abundance of caution to

alert the Court, and provide advanced relief should that become necessary. ECM did not receive 

Complaint Counsel’s proposed witness list until June 11, 2014, and it produced ECM’s proposed 

witness list to Complaint Counsel on June 25, 2014 per the Scheduling Order. Over the next 

week, ECM confirmed expert availability based on the parties’ proposed witness lists and the 

anticipated timeline for the hearing. Based on projections (which are guesses at this point), ECM 

learned at Dr. Stewart’s July 1, 2014 deposition that he would be unable to move his travel plans. 

He has since confirmed that he has no possible way to change his plans and appear in 

Washington before August 27, 2014. ECM counsel conferred with Complaint Counsel on July 

2, 2014 about Dr. Stewart’s availability. ECM attempted to work with Dr. Stewart on his 

scheduling issues, and filed its motion soon thereafter. 

ECM has not delayed this motion, even assuming that was a so-called “dispositive” 

element here. In fact, last week ECM contacted Complaint Counsel asking if they would provide 

advanced information concerning the fact witnesses, if anyone, they intend to actually subpoena 

for live testimony at the hearing. RX-B. That information would better inform ECM of the 

potential scheduling issues, and allow for proper arrangement of witness travel plans. ECM 

received no response to that email.

2
PUBLIC

Complaint Counsel’s refusal to entertain any form of scheduling flexibility shows that 

they are motivated by a desire to deny ECM a reasonable opportunity to present expert 

testimony, rather than out of a clear need to protect against prejudice to their case (which 

prejudice is not apparent in their opposition pleading). Complaint Counsel also misrepresents 

their so-called proposal in CX-A ¶ 2, wherein they state that their offer was to “submit [Dr. 

Stewart’s] deposition in lieu of cross-examination.” That deviates substantially from their actual 

offer, presented on Friday, July 18, 2014, wherein they provided the following:

[W]e would agree that you can submit Dr. Stewart’s report along with a paper direct 

(confined to his report in accordance with the Court’s rules). Dr. Stewart would not give 

a live direct, but we would cross Dr. Stewart for the full day on August 6.

See CC Opp. Exh. CX-A:1. In a response email sent that same day (and conspicuously not 

included in Complaint Counsel’s exhibits to this Court), ECM explained how Complaint 

Counsel’s offer is extremely prejudicial. See RX-C. In short, a proposal that would have ECM’s 

essential expert witness testify only through his report, but undergo a full cross-examination, is 

prejudicial to the point where it almost nullifies completely the witness’s testimony.1

 Dr. 

Stewart has not detailed his complete testimony in the Rule 3.31A report as he would during a 

full day of direct examination. Moreover, Dr. Stewart has not had an opportunity to testify in 

response to Complaint Counsel’s expert rebuttal reports, which Dr. Stewart would have received 

just hours before his July 1, 2014 deposition. Complaint Counsel’s proposal to have Dr. Stewart 

testify through his report only would give them four opportunities to contest Dr. Stewart’s 

1 Another area of prejudice involves the near complete loss of investment ECM has 

placed in Dr. Stewart’s work, which includes a costly consumer perception study that ultimately 

supported ECM’s defense. 

3

 
PUBLIC

written opinion, without affording ECM any opportunity to develop the testimony through direct 

examination.2

Dr. Stewart’s opinion is, in fact, critical to the issues before this Court. Dr. Stewart will 

testify persuasively that, inter alia, Complaint Counsel’s survey expert used wholly unreliable 

methods and achieved biased results.3 He will testify that consumers’ lack any uniform or 

cogent understanding of “biodegradable” claims, such that rendering enforcement or policy 

decisions based on erroneous consumer impression is a flawed approach. Dr. Stewart bases his 

opinions on a telephone survey of high methodological quality, using methods found to be 

reliable in prior cases. Dr. Stewart’s opinions and methodologies have been accepted by this 

Court, and the Commission, in prior cases. 

Although in light of Complaint Counsel’s protestations it would appear that the August 6, 

2014 date mentioned in ECM’s opening brief is unworkable, ECM has presented good cause for 

a limited recess (if even necessary) to accommodate Dr. Stewart’s testimony after August 27th. 

Complaint Counsel, by contrast, has shown no prejudice resulting from that limited recess.4

2 Complaint Counsel has already had an opportunity to present rebuttal reports, take the 

deposition of Dr. Stewart (an entirely one-sided event, of course), will have an opportunity to 

cross-examine Dr. Stewart at the hearing, and will then have the ability to present Dr. Frederick’s 

rebuttal testimony.

3 To save money after receiving a flat fee arrangement, Complaint Counsel’s witness 

used “Google Surveys,” a survey methodology that has never been accepted as a reliable method 

in a court of law, and for good reason.

4 Complaint Counsel only suggests that Dr. Frederick might be inconvenienced by having 

to return at a later time for rebuttal testimony. That position lacks merit, because given the 210 

hour window for the hearing by Rule, Dr. Frederick must already be prepared for that possibility. 

Furthermore, Dr. Frederick presently cannot determine when he would need to appear because of 

the uncertainties in the hearing process. The Yale fall semester begins August 27, which is just 

sixteen business days after the hearing beings (including the first day). Complaint Counsel has 

already indicated that they will require a full day of cross-examination for expert witnesses, 

which would likely follow a day of direct examination. That would mark potentially fourteen

trial days for each of the other seven experts in this case (not including Dr. Stewart), and that 

does not account for fact witnesses. For that reason, a recess may not even be necessary and, if it 

4

 
PUBLIC

Respectfully submitted,

 

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

DATED: July 21, 2014

is, the duration would be quite short. The argument that Dr. Frederick is somehow prejudiced is 

without merit, as is Complaint Counsel’s contumacious opposition on those grounds.

5

 
PUBLIC

STATEMENT CONCERNING MEET AND CONFER

Pursuant to Rule 3.22(g), 21 C.F.R. § 3.22(g), the undersigned counsel certifies that, on 

July 21, 2014, Respondent’s counsel conferred with Complaint Counsel in a good faith effort to 

resolve by agreement the issues raised in the foregoing Motion. The parties have been unable to 

reach an agreement on the issues raised in the attached motion. 

Respectfully submitted,

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

6
PUBLIC

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 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 the e-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

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov

Arturo Decastro

Division of Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: adecastro@ftc.gov

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.

7
PUBLIC

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

DATED: July 21, 2014

8
RX-A
In the Matter of 

ECM BioFilms, Inc., 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

DOCKET NO. 9358 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

January 17,2014 

January 31 , 2014 

February 28, 2014 

March 5, 2014 

March 12,2014 

March 20,2014 

April 3, 2014 

April 16, 2014 

April 24, 2014 

SCHEDULING ORDER 

Complaint Counsel provides preliminary witness list (not including 

experts) with a brief summary of the proposed testimony. 

Respondent's Counsel provides preliminary witness lists (not 

including experts) with a brief summary of the proposed testimony. 

Deadline for issuing document requests, interrogatories and 

subpoenas duces tecum, except for discovery for purposes of 

authenticity and admissibility of exhibits. 

Complaint Counsel provides expert witness list. 

Respondent's Counsel provides expert witness list. 

Deadline for issuing requests for admissions, except for requests 

for admissions for purposes of authenticity and admissibility of 

exhibits. 

Close of discovery, other than discovery permitted under Rule 

3.24(a)(4), depositions of experts, and discovery for purposes of 

authenticity and admissibility of exhibits. 

Deadline for Complaint Counsel to provide expert witness reports. 

Complaint Counsel provides to Respondent's Counsel its final 

proposed witness and exhibit lists, including depositions or 
April 30, 2014 

May 7, 2014 

May 8,2014 

May 12,2014 

May 12,2014 

May 16,2014 

designated portions thereof, copies of all exhibits (except for 

demonstrative, illustrative or summary exhibits and expert related 

exhibits), Complaint Counsel's basis of admissibility for each 

proposed exhibit, and a brief summary of the testimony of each 

witness. 

Complaint Counsel serves courtesy copies on ALl of its final 

proposed witness and exhibit lists, its basis of admissibility for 

each proposed exhibit, and a brief summary of the testimony of 

each witness, including its expert witnesses. 

Deadline for Respondent's Counsel to provide expert witness 

reports. Respondent's expert report shall include (without 

limitation) rebuttal, if any, to Complaint Counsel's expert witness 

report(s). 

Respondent's Counsel provides to Complaint Counsel its final 

proposed witness and exhibit lists, including depositions or 

designated portions thereof, copies of all exhibits (except for 

demonstrative, illustrative or summary exhibits and expert related 

exhibits), Respondent's basis of admissibility for each proposed 

exhibit, and a brief summary of the testimony of each witness. 

Respondent's Counsel serves courtesy copies on ALl its final 

proposed witness and exhibit lists, its basis of admissibility for 

each proposed exhibit, and a brief summary ofthe testimony of 

each witness, including its expert witnesses. 

Parties that intend to offer confidential materials of an opposing 

party or non-party as evidence at the hearing must provide notice 

to the opposing party or non-party, pursuant to 16 C.F.R. § 3.4S(b). 

See Additional Provision 7. 

Complaint Counsel to identify rebuttal expert(s) and provide 

rebuttal expert report(s). Any such reports are to be limited to 

rebuttal of matters set forth in Respondent's expert reports. If 

material outside the scope of fair rebuttal is presented, Respondent 

will have the right to seek appropriate relief (such as striking 

Complaint Counsel's rebuttal expert reports or seeking leave to 

submit surrebuttal expert reports on behalf of Respondent). 

Exchange deposition transcript counter-designations. 

Deadline for depositions of experts (including rebuttal experts) and 

exchange of expert related exhibits. 

2 
May 20, 2014 

May 20, 2014 

May 23 , 2014 

May 27, 2014 

May 27, 2014 

May 28,2014 

May 28, 2014 

May 30, 2014 

May 30, 2014 

June 2, 2014 

June 6, 2014 

June II, 2014 

June 12,2014 

Deadline for filing motions for in camera treatment of proposed 

trial exhibits. 

Deadline for filing motions in limine to preclude admission of 

evidence. See Additional Provision 9. 

Deadline for filing motions for in camera treatment of proposed 

expert related exhibits. 

Deadline for filing responses to motions for in camera treatment of 

proposed trial exhibits. 

Deadline for filing responses to motions in limine to preclude 

admissions of evidence. 

Exchange and serve courtesy copy on ALl objections to final 

proposed witness lists and exhibit lists. 

Exchange objections to the designated testimony to be presented 

by deposition and counter-designations. 

Deadline for filing responses to motions for in camera treatment of 

proposed expert related exhibits. 

Complaint Counsel files pretrial brief supported by legal authority. 

Exchange proposed stipulations oflaw, facts, and authenticity. 

Respondent's Counsel files pretrial brief supported by legal 

authority. 

File final stipulations of law, facts, and authenticity. Any 

subsequent stipulations may be offered as agreed by the parties. 

Final prehearing conference to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

The parties are to meet and confer prior to the conference 

regarding trial logistics and proposed stipulations oflaw, facts, and 

authenticity of exhibits and any designated deposition testimony. 

To the extent the parties stipulate to certain issues, the parties shall 

prepare a Joint Exhibit which lists the agreed stipulations. 

Counsel may present any objections to the final proposed witness 

lists and exhibits, including to any designated deposition 

3 
June 18,2014 

testimony. Trial exhibits will be admitted or excluded to the extent 

practicable. To the extent the parties agree to the admission of 

each other's exhibits, the parties shall prepare a Joint Exhibit 

which lists the exhibits to which neither side objects. Any Joint 

Exhibit will be signed by each party. (Do not include a signature 

line for the ALl.) 

Commencement of Hearing, to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

ADDITIONAL PROVISIONS 

1. For all papers that are required to be filed with the Office of the Secretary, the parties 

shall serve a courtesy copy on the Administrative Law Judge by electronic mail to the following 

email address: oaljlalftc.gov. The courtesy copy should be transmitted at or shortly after the time 

of any electronic filing with the Office of the Secretary. The oaljlalftc.gov email account is to be 

used only for courtesy copies of pleadings filed with the Office of the Secretary and for 

documents specifically requested of the parties by the Office of Administrative Law Judges. 

Certificates of service for any pleading shall not include the OALl email address. or the email 

address of any OALl personnel, including the Chief ALl, but rather shall designate only 600 

Pennsylvania Ave., NW, RID. H-II 0 as the place of service. The subject line of all electronic 

submissions to oalj@ftc,gov shall set forth only the Docket Number and the title of the 

submission. The parties are not required to serve a courtesy copy to the OALl in hard copy, 

except upon request. In any instance in which a courtesy copy of a pleading for the 

Administrative Law Judge cannot be effectuated by electronic mail, counsel shall hand deliver a 

hard copy to the Office of Administrative Law Judges. Discovery requests and discovery 

responses shall not be submitted to the Office of Administrative Law Judges. The parties are 

reminded that all filings with the Office of the Secretary, including electronic filings, are 

governed by the provisions of Commission Rule 4.3( d), which states: "Documents must be 

received in the Office of the Secretary of the Commission by 5:00 p.m. Eastern time to be 

deemed filed that day. Any documents received by the agency after 5:00 p.m. will be deemed 

filed the following business day." 

2. The parties shall serve each other by electronic mail and shall include "Docket 

9358" in the re line and all attached documents in .pdfformat. Complaint Counsel and 

Respondent's Counsel agree to waive their rights to Service under 16 C.F.R. § 4.4(a)-(b). 

3. Each pleading that cites to unpublished opinions or opinions not available on 

LEXIS or WESTLA W shall include such copies as exhibits. 

4. Each motion (other than a motion to dismiss or a motion for summary 

decision) shall be accompanied by a separate signed statement representing that counsel for the 

moving party has conferred with opposing counsel in an effort in good faith to resolve by 

agreement the issues raised by the motion and has been unable to reach such an agreement. In 

4 
addition, pursuant to Rule 3.22(g), fo r each motion to quash filed pursuant to § 3.34(c), each 

motion to compel or determine sufficiency pursuant to § 3.38(a), or each motion for sanctions 

pursuant to § 3.38(b), the required signed statement must also "recite the date, time, and place of 

each ... conference between counsel, and the names of all parties participating in each such 

conference." Motions that fail to include such separate statement may be denied on that ground. 

5. Rule 3.22(c) states: 

All written motions shall state the particular order, ruling, or action desired and 

the grounds therefor. Memoranda in support of, or in opposition to, any 

dispositive motion shall not exceed 10,000 words. Memoranda in support of, or 

in opposition to, any other motion shall not exceed 2,500 words. Any reply in 

support of a dispositive motion shall not exceed 5,000 words and any reply in 

support of any other motion authorized by the Administrative Law Judge or the 

Commission shall not exceed 1,250 words. 

If a party chooses to submit a motion without a separate memorandum, the word count limits of 

3.22(c) apply to the motion. Ifa party chooses to submit a motion with a separate memorandum, 

absent prior approval of the ALI, the motion shall be limited to 750 words, and the word count 

limits of3.22(c) apply to the memorandum in support ofthe motion. This provision applies to 

all motions filed with the Administrative Law Judge, including those filed under Rule 3.38. 

6. If papers filed with the Office of the Secretary contain in camera or 

confidential material, the filing party shall mark any such material in the complete version of 

their submission with {bold font and braces}. 16 C.F.R. § 3.45(e). Parties shall be aware of the 

rules for filings containing such information, including 16 C.F.R. § 4.2. 

7. If a party intends to offer confidential materials of an opposing party or non-party as 

evidence at the hearing, in providing notice to such non-party, the parties are required to inform 

each non-party of the strict standards for motions for in camera treatment for evidence to be 

introduced at trial set forth in 16 C.F.R. § 3.45, explained in In re Dura Lube Corp., 1999 FTC 

LEXIS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc , 2000 FTC LEXIS 157 (Nov. 

22,2000) and 2000 FTC LEXIS 138 (Sept. 19,2000); In re Basic Research, Inc. , 2006 FTC 

LEXIS 14 (Jan. 25, 2006), and summarized herein. Motions also must be supported by a 

declaration or affidavit by a person qualified to explain the confidential nature of the documents. 

In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23, 2004). Each party or 

non-party that files a motion for in camera treatment shall provide one copy of the documents for 

which in camera treatment is sought to the Administrative Law Judge. 

8. If the expert reports prepared for either party contain confidential information that has 

been granted in camera treatment, the party shall prepare two versions of its expert report(s) in 

accordance with Provision 6 of this Scheduling Order and 16 C.F.R. § 3.45(e). 

9. Motions in limine are discouraged. Motion in limine refers "to any motion, whether 

made before or during trial, to exclude anticipated prejudicial evidence before the evidence is 

actually offered." In re Daniel Chapter One, 2009 FTC LEXIS 85, * 18-20 (April 20, 2009) 

5 
(citing Luce v. United States, 469 U.S. 38,40 n.2 (1984». Evidence should be excluded in 

advance of trial on a motion in limine only when the evidence is clearly inadmissible on all 

potential grounds. Id. (citing Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 

1398,1400 (N.D. Ill. 1993); Sec. Exch. Comm 'n v. Us. Environmental, Inc. , 2002 U.S. Dis!. 

LEXIS 19701, at *5-6 (S.D.N.Y. Oct. 16,2002». Moreover, the risk of prejudice from giving 

undue weight to marginally relevant evidence is minimal in a bench trial such as this where the 

judge is capable of assigning appropriate weight to evidence. 

1 O. Compliance with the scheduled end of discovery requires that the parties serve 

subpoenas and discovery requests sufficiently in advance of the discovery cut-off and that all 

responses and objections will be due on or before that date, unless otherwise noted. Any motion 

to compel responses to discovery requests shall be filed within 30 days of service of the 

responses and/or objections to the discovery requests or within 20 days after the close of 

discovery, whichever first occurs. 

II. Each party is limited to 50 document requests, including all discrete subparts; 

25 interrogatories, including all discrete subparts; and 50 requests for admissions including all 

discrete subparts except that there shall be no limit on the number of requests for admission for 

authentication and admissibility of exhibits. Any single interrogatory inquiring as to a request 

for admissions response may address only a single such response. There is no limit to the 

number of sets of discovery requests the parties may issue, so long as the total number of each 

type of discovery request, including all subparts, does not exceed these limits. Within seven 

days of service of a document request, the parties shall confer about the format for the 

production of electronically stored information. 

12. The deposition of any person may be recorded by videotape, provided that the 

deposing party notifies the deponent and all parties of its intention to record the deposition by 

videotape at least five days in advance of the deposition. No deposition, whether recorded by 

videotape or otherwise, may exceed a single, seven-hour day, unless otherwise agreed to by the 

parties or ordered by the Administrative Law Judge. 

13. The parties shall serve upon one another, at the time of issuance, copies of all 

subpoenas duces tecum and subpoenas ad testificandum. For subpoenas ad testificandum, the 

party seeking the deposition shall consult with the other parties before the deposition date is 

scheduled. The parties need not separately notice the deposition of a third party noticed by an 

opposing party. At the request of any party, the time and allocation for a third party deposition 

shall be divided evenly between them, but the noticing party may use any additional time not 

used by the opposing party. If no party makes such a request, cross-examination of the witness 

will be limited to one hour. 

14. Non-parties shall provide copies or make available for inspection and 

copying of documents requested by subpoena to the party issuing the subpoena. The party that 

has requested documents from non-parties shall provide copies of the documents received from 

non-parties to the opposing party within three business days of receiving the documents. No 

deposition of a non-party shall be scheduled between the time a non-party provides documents in 

response to a subpoena duces tecum to a party, and 3 days after the party provides those 

6 
documents to the other party, unless a shorter time is required by unforeseen logistical issues in 

scheduling the deposition, or a non-party produces those documents at the time of the deposition 

as agreed to by all parties involved. 

15. The final witness lists shall represent counsels' good faith designation of all 

potential witnesses who counsel reasonably expect may be called in their case-in-chief. Parties 

shall notify the opposing party promptly of changes in witness lists to facilitate completion of 

discovery within the dates of the scheduling order. The final proposed witness list may not 

include additional witnesses not listed in the preliminary witness lists previously exchanged 

unless by consent of all parties, or, if the parties do not consent, by an order of the 

Administrative Law Judge upon a showing of good cause. 

16. The final exhibit lists shall represent counsels' good faith designation of all 

trial exhibits other than demonstrative, illustrative, or summary exhibits. Additional exhibits 

may be added after the submission of the final lists only by consent of all parties, or, if the 

parties do not consent, by an order of the Administrative Law Judge upon a showing of good 

cause. 

17. Witnesses shall not testify to a matter unless evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter. F.R.E. 602. 

18. Witnesses not properly designated as expert witnesses shall not provide 

opinions beyond what is allowed in F.R.E. 701. 

19. The parties are required to comply with Rule 3.31A and with the following: 

(a) At the time an expert is first listed as a witness by a party, that party shall 

provide to the other party: 

(i) materials fully describing or identifying the background and qualifications of 

the expert, all publications authored by the expert within the preceding ten years, and all prior 

cases in which the expert has testified or has been deposed within the preceding four years; and 

(ii) transcripts of such testimony in the possession, custody, or control of the 

producing party or the expert. 

(b) At the time an expert report is produced, the producing party shall provide to the 

other party all documents and other written materials relied upon by the expert in formulating an 

opinion in this case. Unless otherwise agreed by the parties, the experts' notes and drafts of 

expert reports need not be produced. Likewise, communications between experts and with 

counselor consultants need not be produced unless relied upon by the expert in formulating an 

opinion in this case. 

(c) It shall be the responsibility of a party designating an expert witness to ensure that the 

expert witness is reasonably available for deposition in keeping with this Scheduling Order. 

Unless otherwise agreed to by the parties or ordered by the Administrative Law Judge, expert 

7 
witnesses shall be deposed only once and each expert deposition shall be limited to one day for 

seven hours. 

(d) Each expert report shall include a complete statement of all opinions to be expressed 

and the basis and reasons therefore; the data or other information considered by the expert in 

forming the opinions; any exhibits to be used as a summary of or support for the opinions; the 

qualifications of the expert; and the compensation to be paid for the study and testimony. 

(e) A party may not discover facts known or opinions held by an expert who has been 

retained or specially employed by another party in anticipation of this litigation or preparation 

for hearing and who is not designated by a party as a testifying witness. 

(f) At the time of service ofthe expert reports, a party shall provide opposing counsel (i) 

a list of all commercially-available computer programs used by the expert in the preparation of 

the report; (ii) a copy of all data sets used by the expert, in native file format and processed data 

file format; and (iii) all customized computer programs used by the expert in the preparation of 

the re.J?ort or necessary to replicate the findings on which the expert report is based. 

20. Properly admitted deposition testimony and properly admitted investigational 

hearing transcripts are part of the record and need not be read in open court. Videotape 

deposition excerpts that have been admitted in evidence may be presented in open court only 

upon prior approval by the Administrative Law Judge. 

21. The parties shall provide one another, and the Administrative Law Judge, no 

later than 48 hours in advance, not including weekends and holidays, a list of all witnesses to be 

called on each day of hearing, subject to possible delays or other unforeseen circumstances. 

22. The parties shall provide one another with copies of any demonstrative, 

illustrative or summary exhibits (other than those prepared for cross-examination) 24 hours 

before they are used with a witness. 

23. Complaint Counsel's exhibits shall bear the designation CX and Respondent's 

exhibits shall bear the designation RX or some other appropriate designation. Complaint 

Counsel's demonstrative exhibits shall bear the designation CXD and Respondent's 

demonstrative exhibits shall bear the designation RXD or some other appropriate designation. 

Both sides shall number the first page of each exhibit with a single series of consecutive 

numbers. When an exhibit consists of more than one piece of paper, each page of the exhibit 

must bear a consecutive control number or some other consecutive page number. Additionally, 

parties must account for all their respective exhibit numbers. Any number not actually used at 

the hearing shall be designated "intentionally not used." 

24. At the final prehearing conference, counsel will be required to introduce all 

exhibits they intend to introduce at trial. The parties shall confer and shall eliminate duplicative 

exhibits in advance of the final prehearing conference and, if necessary, during trial. For 

example, ifRX 100 and CX 200 are different copies of the same document, only one of those 

documents shall be offered into evidence. In addition, the parties shall confer in advance of the 

8 
final prehearing conference to prepare a Joint Stipulation that lists the proposed exhibits to which 

neither party has an objection to admissibility. Additional exhibits may be added after the final 

prehearing conference only by order of the Administrative Law Judge upon a showing of good 

cause. Counsel shall contact the court reporter regarding submission of exhibits. 

ORDERED: 

D. Michael Chappe 

Chief Administrative Law Judge 

Date: November 21,2013 

9 
RX-B
From: Peter Arhangelsky

To: Johnson, Katherine

Cc: Cohen, Jonathan; Jonathan Emord; Eric Awerbuch

Subject: Service Copy; Dkt. 9358, Respondent ECM Biofilm"s Objections to Complaint Counsel"s Final Proposed Exhibit List

 & Witness List (July 18, 2014)

Date: Friday, July 18, 2014 1:57:01 PM

Attachments: Dkt. No. 9358 - Respondent"s Objections to Complaint Counsel"s Final Proposed Exhibit List (July 18, 2014).pdf

Dkt. No. 9358 - Respondent"s Objections to Complaint Counsel"s Final Proposed Witness List (July 18, 2014).pdf

Counsel,

Please see the attached objections per the Court’s Third Revised Scheduling Order.  We reserve the

right to amend or supplement our objections to accommodate expert exhibits not yet designated.

Concerning the witness lists, we note that ECM’s list overlapped with your list for certain fact

witnesses.  To ensure witness availability at the hearing, we would like to determine which of those

fact witnesses Complaint Counsel intends to subpoena for live testimony.  We recognize that you

may attempt to designate transcripts in lieu of in-person testimony, and that you may not have

made final decisions concerning your witnesses.  However, because these are third party witnesses

who likely need adequate notice, perhaps we can cooperate to produce a list of individuals we

intend (at least presently) to subpoena.  ECM can then provide its witnesses sufficient notice so they

can reserve their schedules and perhaps arrange travel in advance of the subpoena ad

 testificandum.  Our position is that a non-party fact witness called in your case-in-chief should need

to make just one appearance, wherein both parties would have sufficient opportunity for an

examination (without need for ECM to recall that witness weeks later).

Please let us know your thoughts on this.  We are available to discuss on Monday.

Thanks,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIaTeS, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler,

85286

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this

communication is protected from disclosure by the attorney-client privilege and the work product doctrine. If

you are not the intended recipient, you should treat this communication as strictly confidential and provide it to

the person intended. Duplication or distribution of this communication is prohibited by the sender. If this

communication has been sent to you in error, please notify the sender and then immediately destroy the

document.
RX-C
From: Peter Arhangelsky

To: Cohen, Jonathan

Cc: Johnson, Katherine; Jonathan Emord; Eric Awerbuch

Subject: RE: Service & Dr. Stewart

Date: Friday, July 18, 2014 12:21:13 PM

Attachments: Service Copy Respondent"s Opposition to Complaint Counsel"s Motion to Compel Discovery Wrongly Withheld by

 Dr. David Stewart.msg

Dkt. No. 9358 Respondent"s Opposition to Complaint Counsel"s Motion to Compel Discovery Wrongly Withheld

 by Dr. David Stewart.msg

Jonathan,

We served you twice on July 11, 2014:  once when we copied you on our email courtesy copy to the

OALJ, and again minutes later through a service email (both attached here). 

Concerning Dr. Stewart’s appearance, we think his live testimony is essential, and it does not appear

that an out-of-turn appearance will fit the schedule.  The offer to have him enter a “paper direct”

through his report, while appreciated, would substantially prejudice ECM.  We think it would be

reversible error.  Much like your experts, Dr. Stewart did not articulate his opinions in his report to

the level of detail that he would offer at the hearing.  Moreover, he has not had an opportunity to

testify in response to Dr. Frederick’s rebuttal report (which Dr. Stewart received on the eve of his

deposition).  Dr. Frederick also introduced additional argument based on new data, and Dr. Stewart

did not have an opportunity to address that information in his original report.  By having him subject

to cross-examination only, Complaint Counsel essentially gets three opportunities to contest Dr.

Stewart’s direct testimony (the deposition, cross at hearing, and rebuttal testimony of Dr.

Frederick), without affording ECM a single opportunity to develop Dr. Stewart’s direct testimony in

any meaningful way. 

So we must reject your offer because it would obviously marginalize Dr. Stewart’s testimony, which

is tantamount to excluding his testimony altogether.  A short recess of the sort we proposed is not

out of the norm in litigation, and it imposes almost no burden on Complaint Counsel.  As we noted

in our motion, Dr. Frederick appears slated to teach about 2 hours per week this upcoming

semester.  Even if he carried a heavier schedule, it strains credulity to think that he cannot clear one

day for rebuttal testimony during late August, at a time still within the allotted 210 hours for the

hearing set by the rules. 

We filed our motion because time was of the essence, and it did not appear that an agreement

between the parties was likely.  But let us know if you think we can reach an agreement now.

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIaTeS, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler,

85286

Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this

communication is protected from disclosure by the attorney-client privilege and the work product doctrine. If
you are not the intended recipient, you should treat this communication as strictly confidential and provide it to

the person intended. Duplication or distribution of this communication is prohibited by the sender. If this

communication has been sent to you in error, please notify the sender and then immediately destroy the

document.

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

Sent: Friday, July 18, 2014 11:46 AM

To: Eric Awerbuch; Jonathan Emord; Peter Arhangelsky

Cc: Decastro, Arturo; Johnson, Katherine

Subject: ECM: Service & Dr. Stewart

Counsel,

            We have no record of receiving your opposition to our motion concerning the

manufacturer’s pilot study, although the Court relied on your opposition to deny our motion.  If

we simply missed your service, I apologize.  If not, please serve us now, and we’ll evaluate what

to do next (having not seen your opposition, we reserve our rights). 

More broadly, please confirm that there’s nothing else ECM has filed but not served on

Complaint Counsel.  Again, if we simply missed your service copy, then I apologize. 

Finally, with respect to your motion to recess the trial, we suggest another option that

would still prejudice us somewhat, but less than the alternatives you propose.  Specifically, we

would agree that you can submit Dr. Stewart’s report along with a paper direct (confined to his

report in accordance with the Court’s rules).  Dr. Stewart would not give a live direct, but we

would cross Dr. Stewart for the full day on August 6.  This would prejudice us because the trial

would begin with your case, not ours, and but the prejudice would be limited because it would

only be the cross of an adverse witness, rather than the direct of an adverse witness. 

Please let us know if you agree to this alternative, so that we can avoid both further filings

and further uncertainty with respect to Dr. Stewart’s testimony.              

Best,

Jonathan Cohen

Enforcement Division |  Bureau of Consumer Protection |  Federal Trade Commission 

600 Pennsylvania Avenue, N.W., CC-9528  Washington, D.C.  20580 

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