PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF ADMINISTRATIVE LAW JUDGE 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) Docket No. 9358 

) 

) 

) 

) 

) 

) 

) 

MOTION TO QUASH AND/OR LIMIT SUBPOENA DUCES TECUM 

AND FOR AN AWARD OF EXPENSES 

I. INTRODUCTION 

Third Party O.W.S. Inc. ("O.W.S.") moves the Court to quash or limit the subpoena 

duces tecum ("Subpoena") served by ECM BioFilms, Inc. ("ECM") ("Exhibit 1 ") to the extent 

the Subpoena is unduly burdensome, would require unreasonable time and expense to comply 

with, requests irrelevant information and seeks confidential and proprietary, and in many 

instances competitive, information owned by and under the control ofO.W.S.'s customers. By 

doing so, ECM is attempting to shift costs and burdens, as well as business risk, away from itself 

and onto O.W.S. ECM knows to which of its customers it sold additives or gave samples, and 

can directly subpoena or obtain information from them. O.W.S also seeks an award of its 

expenses. 

II. BACKGROUND 

O.W.S. is an independent testing company that tests various types of plastic for 

biodegradability. Affidavit of Richard Tillinger ("Tillinger Aff.") ("Exhibit 2"), ~ 3. From 2007 
PUBLIC DOCUMENT 

to the present-the demanded production timeframe-O.W.S. tested the biodegradability of 

hundreds of products and materials for over one hundred customers. ld., ~ 4. 

ECM sells plastic additives ("ECM Additives"), sometimes added to conventional 

plastics to create "ECM Plastics." Some conventional plastics that O.W.S. tests might contain 

ECM Additives, but O.W.S. only knows if the product contains an ECM Additive if the 

customer includes that information. ld., ~~ 3, 5 and 6. Several ofO.W.S.'s customers are 

competitors ofECM for additives; many more are competitors for biodegradable materials. ld., 

~7. 

O.W.S.'s customers include manufacturers testing their products, manufacturers testing 

their competitors' products, trade organizations, and attorneys testing their clients' products. ld. 

The vast majority ofO.W.S.'s customers require strict confidentiality. ld., ~ 8. O.W.S. 

affirmatively represents to its customers in its Terms and Conditions that it will treat their 

information as "strictly confidential." ld. Information concerning O.W.S.'s attorney customers 

is privileged. ld. O.W.S. customers, not O.W.S., own the testing information. Id., ~ 9. O.W.S. 

vehemently protects its customers' confidential and proprietary information, which is critical to 

gaining and maintaining the trust of its customers. ld., ~ 8. O.W.S. has even refused to 

distribute information to third parties concerning ECM's own test results for this very reason. 

I d. 

While O.W.S. has attempted to resolve this dispute, and ECM has narrowed or eliminated 

some of the requests, other objectionable requests remain. O.W.S. has already spent thousands 

in legal fees and consulting time opposing ECM's broad requests and gathering documents. ld., 

~ 14. It should not be required to spend more or to jeopardize its own business. 
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III. ARGUMENT 

A. General Objections. 

Rather than repeat each of the following in response to various Requests, O.W.S. will set 

forth the following, and merely make reference to them in the Specific Objections. 

"Relevance"-the Subpoena requests irrelevant information-including test resultsconcerning O.W.S. customers other than ECM. This information is completely unrelated to 

ECM and cannot be expected to yield information relevant to the allegations of the Complaint 

regarding false advertising, to the FTC's proposed relief, or to ECM's defenses. 16 C.F.R. 

3.31(c)(l). 

"Confidentiality"-the Subpoena seeks confidential and proprietary information 

regarding O.W.S. customers, many ofwhom are competitors ofECM. O.W.S. owes strict 

contractual duties of non-disclosure and confidentiality to each such customer, and, in the case of 

testing done for O.W.S.'s attorney customers, that information is protected by the work product 

privilege. Tillinger Aff, ,-r 8. This information is not within the control ofO.W.S. but is instead 

owned and controlled by the customers. !d., ,-r 9. Requiring O.W.S. to produce its customers' 

information, even under the Protective Order, places O.W.S. in the untenable position of being in 

breach of contract and violating the trust and confidence of its own customers. !d., ,-r 8. The 

Protective Order is insufficient to protect this information, especially that ofECM's competitors, 

or to protect O.W.S.'s business interests, which will be irreparably harmed if required to respond 

as demanded. This point is particularly important given that ECM could have gone directly to its 

Additives customers, but did not. In fact, ECM has attempted to limit Complaint Counsel's 

discovery requests to its customers. See ECM's Feb. 21, 2014, Motion for Protective Order, 

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PUBLIC DOCUMENT 

"Burden"-to the extent the Subpoena seeks information concerning O.W.S. customers 

other than ECM, that information is obtainable from other sources that are more convenient, less 

expensive and less burdensome-those customers. 16 C.F.R. 3.31(2)(i). For O.W.S. to identify 

responsive documents in several categories would be a seemingly insurmountable task. For 

example, O.W.S. has no way to reasonably search customer records to discern whether another 

customer's material contained an ECM Additive or related to ECM. Tillinger Af£, ~ 6. If 

O.W.S. were required to produce those documents, to fully comply it would have to: (1) search 

all of its records for communications that positively state ECM Additives were tested, (2) review 

each test it has performed to exclude tests which the customer conclusively stated did not contain 

ECM Additives, (3) contact every other customer for every test performed to inquire whether 

their test contained ECM Additives, and ( 4) for each test that contained ECM Additives, examine 

that customer's confidentiality agreement, obtain the customer's consent and/or allow them to 

intervene. !d.,~ 6. This is an unduly burdensome task-that information is irrelevant, and ECM 

can obtain those documents directly from the customers i! sells the ECM Additives to, who can 

then directly object or decide to produce their own information. 

B. Request for Costs. 

A subpoenaed party is only expected to bear reasonable costs. See In Re Int'l. Tel. & Tel. 

Corp., No. 9000, 1981 FTC LEXIS 75, 97 F.T.C. 202, * 3. To determine whether expenses are 

reasonable, the Court should consider the costs of compliance in relation to the size and 

resources of the subpoenaed party. !d. 

O.W.S.'s business operations consist of only two people: one consultant and one 

employee. Tillinger Aff., ~ 10. Any time spent by them in complying with the Subpoena 

impacts O.W.S.'s ability to operate. O.W.S.'s average annual revenue over the last three years 

was approximntely $698,000, und its average annual profit approximately $11,000. !d.,~ 11. 

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O.W.S. has already incurred significant costs as a direct result of the Subpoena and will 

continue to do so. As of the filing of this Motion, O.W.S. has incurred legal fees of 

approximately $19,000 and already spent approximately 60 hours, at a cost of approximately 

$5,500, responding to the Subpoena-already eliminating O.W.S.'s 2014 profit. Jd, ~ 14. 

O.W.S. informed ECM that responding to the Subpoena would impose a burden on it 

with little or no relevance to this case. See Statement of Christine M. Haaker ("Haaker Stmt.") 

("Exhibit 3").1 ECM made these exact objections to document requests from the FTC. See 

Respondent's Opposition to Complaint Counsel's Motion to Compel. ECM therein accused the 

FTC of conducting a "fishing expedition" (Jd, 7). Yet, here, ECM could not identify any 

documents that O.W.S. has that will be helpful to its defense. Haaker Stmt., p. 4. 

ECM is a party to this proceeding-O.W.S. is not. See AF holdings LLC v. Does, 286 

F.R.D. 39 (D. D.C. 2012) (test for "undue burden" in responding to subpoena requires court to be 

sensitive to costs imposed on third-parties). O.W.S. does not compete in ECM's industry and 

has absolutely no stake in the outcome of this Proceeding. ECM has had ample time to pursue 

discovery directly from its customers who purchased ECM Additives. 16 C.P.R. 3.31(2)(ii). 

The expenses and burden to 0. W .S.' s business interests and of searching for and producing such 

a wide range of documents far outweighs any benefit. 16 C.F .R. 3.31 (2)(iii). 

O.W.S. believes the expenses it has been forced to incur are unreasonable and seeks 

payment for such expenses from ECM. At minimum, O.W.S. requests that ECM be ordered to 

pay for all additional expenses it will incur if this Motion, or any portion thereof, is denied. 

C. Specific Objections to Requests. 

1 While some requests have been limited by agreement (Haaker Stmt.), the Subpoena originally 

requested confidential information completely unrelated to ECM. ECM had no basis to request 

that information, and any costs incurred as a result by O.W.S. are unreasonable. 

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PUBLIC DOCUMENT 

1. All documents and correspondence concerning ECM BioFilms, Inc., 

Robert Sinclair, and/or ECM BioFilms Master Batch Pellets. 

O.W.S. is searching for and producing documents that are not customer specific and that 

generically reference ECM, Mr. Sinclair and/or the ECM Master Batch Pellets, however, O.W.S. 

objects to further production as follows: 

First, Relevance. 

Second, Confidentiality. 

Third, Burden. 

O.W.S. requests that this Request be limited to exclude documents concerning O.W.S. 

customers other than ECM, and to only include documents concerning ECM that are noncustomer specific (not confidential) to the extent readily located. 

3. All correspondence between O.W.S. and any member, employee, 

representative, or officer ofthe United States Federal Trade 

Commission. 

O.W.S. is searching for and producing documents readily identifiable as correspondence 

with the FTC that may regard ECM, however, O.W.S. objects to further production as follows: 

First, Relevance. 

Second, this Request is unduly burdensome. O.W.S. does not know the name, identity, 

or even words to search for to know whether correspondence has been with a "member, 

employee, representative, or officer" of the FTC. 

O.W.S. requests that the Court limit this Request to those documents where O.W.S. 

knowingly corresponded with the FTC in regard to ECM. 

4. All correspondence between O.W.S. and any member, employee, 

and/or representative of the Biodegradable Products Institute 

("BPI"). 

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PUBLIC DOCUMENT 

O.W.S. is searching for and producing correspondence that is not customer specific and 

that relates generally to the BPI, however, O.W.S. objects to further production as follows: 

O.W.S. interacts with the BPI on three levels: 

O.W.S. deals with BPI on behalf of O.W.S. customers regarding requests for certification 

of customers' own products. Jd, ~ 12. BPI administers a certification mark for compostable 

products; many O.W.S. customers seek this certification. Jd Communications with the BPI in 

this capacity can include confidential and proprietary information such as material or product 

formulations, product construction, manufacturing techniques, testing results, and marketing 

plans. Jd, ~ 12. These discussions are unrelated to ECM and the Proceeding. 

O.W.S. participates-along with one representative of the BPI--on subcommittee 

D20.96 of the American Society for Testing and Materials ("ASTM"). Jd Robert Sinclair ("Mr. 

Sinclair") of ECM is also on this committee and has access to communications related thereto. 

Jd 

Finally, because some ofO.W.S.'s customers are members ofthe BPI, technically every 

correspondence between O.W.S. and those members is responsive to this Request. Jd Likely 

hundreds of correspondence exist in the normal course of 0. W .S.' s business with such customers 

in their own commercial capacities, not in their capacity as members of BPI. Jd, ~ 4. 

With this backdrop, O.W.S. objects for the following reasons: 

First, Relevance. 

Second, Confidentiality. This Request seeks communications between O.W.S. and the 

BPI on behalf ofO.W.S. customers, as well as communications between O.W.S. and any 

customer that happens to be a member of the BPI. 

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PUBLIC DOCUMENT 

Third, this Request is unduly burdensome. As written, this Request seeks literally every 

communication between O.W.S. and any of its customers that happens to be a member ofthe 

BPI. The vast majority-if not all--of these communications are completely unrelated to ECM. 

!d.,~ 6. The burden and expense far outweighs those documents' likely benefit. 

Fourth, this Request seeks documents that are obtainable from a less burdensome 

source-Mr. Sinclair ofECM, who is on ASTM subcommittee 020.96. !d.,~ 12. 

O.W.S. requests that the Court limit this Request to only correspondence between O.W.S. 

and known employees of the BPI in regard to the work of BPI to the extent the correspondence 

directly pertains to ECM itself, and to exclude O.W.S.'s customers' correspondence and such 

customers' BPI certification efforts. 

5. (By Agreement, rephrased): Since January 1, 2010, all documents 

concerning any test or report (including any notes and raw data) 

performed or written to the biodegradability of plastic products 

under ASTM standards D5511 and D5526 for ECM and/or a plastic 

product containing the ECM additive. 

O.W.S. objects as follows: 

First, Relevance. 

Second, Confidentiality. 

Third, Burden. Testing under these ASTM standards constitutes a significant amount of 

O.W.S.'s business. Tillinger Aff., ~ 13. Compliance would require O.W.S. to search for and 

produce other customers' documents. !d.,~ 6. In addition, O.W.S. would have to notify each of 

its customers of this production to obtain permission or allow the customer to object. !d.,~ 8. 

The burden and expense involved in identifying and producing all responsive documents far 

outweighs those documents' likely benefit. 

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PUBLIC DOCUMENT 

For these reasons, O.W.S. requests that the Court limit this Request to include only 

responsive tests performed for ECM. 

6. All documents concerning the education, training, experience, and 

employee evaluations of Mr. Bruno de Wilde. 

8. All documents concerning the education, training, experience, and 

employee evaluations of Mr. Richard Tillinger. 

These Requests seek entirely irrelevant documents. Neither Mr. De Wilde, Mr. Tillinger 

nor O.W.S. are parties to or witnesses in this Proceeding, nor are they on trial. Requesting this 

information, particularly evaluations, under these circumstances is entirely improper. 

O.W.S. requests that this Court quash these Requests. 

10. (By Agreement, rephrased:) "Since January 1, 2010, all documents 

and correspondence concerning any amendments, vote(s); and/or 

'negatives' related to ASTM standard D5511 and D5526." 

First, Relevance. 

Second, Burden. The burden of producing responsive documents far outweighs their 

expected benefit. 

Finally, this Request seeks documents that are obtainable from a less burdensome 

source-Mr. Sinclair ofECM. Mr. Sinclair is on the same ASTM subcommittee as O.W.S. 

Tillinger Aff., ~ 12. 

O.W.S. requests that this Court quash this Request. 

C. Objections to ECM's Subpoena Instructions. 

Instruction C requires a complete copy of each document to be produced, regardless of 

relevance. In light of the fact that most of the requested information is completely irrelevant and 

highly sensitive, O.W.S. requests that this Court strike this instruction and allow O.W.S. to 

produce only those portions of documents that relate to ECM's testing ofECM's own products. 

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PUBLIC DOCUMENT 

Instruction L seeks to improperly require answers to interrogatories in regard to 

documents withheld for privilege. O.W.S. will comply with the 16 C.F.R. 3.38A, and 

accordingly, requests that this Court strike this instruction. 

IV. CONCLUSION 

ECM issued the Subpoena to O.W.S. in what appears to be an effort to harass and harm 

O.W.S. and/or O.W.S. customers, and to avoid the expense and burden of going directly to its 

own customers for the information. For the foregoing reasons, O.W.S. requests that this Court 

quash and/or limit the Requests of Subpoena and award O.W.S. its expenses. 

Respectfully submitted, 

Is/Christine M. Haaker 

Christine M. Haaker (#0063225) 

Jeremy D. Smith (#0088539) 

THOMPSON HINE LLP 

Austin Landing I 

10050 Innovation Drive, Suite 400 

Miamisburg OH 45342 

Dayton, Ohio 45401-8801 

Telephone: (937) 443-6822 

Facsimile: (937) 443-6635 

E-mail: Christine.Haaker@Thompsonhine.com 

Jeremy .Smith@Thompsonhine.com 

Attorneys for Third-Party 0. W.S. Inc. 

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PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE AND CERTIFICATE OF ELECTRONIC FILING 

I hereby certify that on March 12, 2014, I caused a true and correct copy of the paper 

original of the foregoing Motion to Quash and/or Limit Subpoena Duces Tecum and for an 

Award of Expenses to be filed and served as follows: 

On electronic copy via the FTC E-Filing System and one electronic courtesy copy to the Office 

of the Secretary: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Avenue, NW, Room H-110 

Washington DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

·Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

PeterArhangelsky 

Emord & Associates, P.C. 

321 0 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Bethany R. Kennedy 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: bkennedy@emord.com 

One electronic copy to Counsel for the Claimant: 

Jonathan Cohen 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, M-8102B 

Washington, DC 20580 

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PUBLIC DOCUMENT 

I further certify that I possess a paper copy of the signed original of the foregoing 

document that is available for review by the parties and the adjudicator. 

Is/Christine M. Haaker 

Christine M. Haaker (#0063225) 

THOMPSON HINE LLP 

Austin Landing I 

10050 Innovation Drive, Suite 400 

Miamisburg OH 45342 

Dayton, Ohio 45401-8801 

Telephone: (937) 443-6822 

Facsimile: (937) 443-6635 

E-mail: Christine.Haaker@Thompsonhine.com 

Attorney for Third-Party 0. W.S. Inc. 

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PUBLIC DOCUMENT 

VIA UPS 

Organic Waste Systems, Inc. 

7155 Five Mile Road 

Cincinnati, OH 45230 

February 13, 2014 

.. uq:- t ·.•• · .. .:·r .:.-:::: 

A Professional Corpor.nion 

wAsHINGTON 1 vmaooA i r:it<:if.i:-l-x--

••a08 WoLF Rt."N LA. 'IE 

Cl.lrroN, VA 20124 

3210 S. Gli.RERl ROAD 

SUITE4 

CHANDLER, AZ 85286 

(602}388-88991 FAX (602} 393-4361 

IOSO SEVENrmmf S1Jtm, N. W. 

SumliOO 

WASHJNOTON,D.C. 20036 

(202) 466-69371 FAX (202) 466-6938 

Lo11 F. Capulo, Esq. 

602388.8901 

lcaputo@cmnrd.com 

Re: In the Matter of ECM BioFilms. Inc., Docket No. 9358 

Dear Sir or Madam: 

Pursuant to the Federal Trade Commission's Rules of Practice, please fmd enclosed 

Respondent ECM BioFilms, Inc.'s subpoena duce.<; tecum to O.W.S. This subpoena requests the 

production of documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter. 

Please provide all requested documents no later than February28, 2014. Wcwelcome 

you to contact us with questions. 

E!MORD&AssOCIATES, J>.C. 

W ASIIINGTON, D.C.! VJRGnM I AIUZCNA 

Sincerely, 

Peter A. Arhangelsky 

Lou F. Caputo 

I. 

(202) 466-6937/F AX (202) 466-693& 

WWW.T~Rb.COM 

Exhibit 
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PUBLIC DOCUMENT 

SUBPOENA DUCES TECUM 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Purauant to Commission Rule 16 C.F .R. 

1. TO 

General Counsel and/or other Executive for 

Organic Waste Systems 

7155 Five Mile Road 

Cincinnati, OH 45230 

3. PlACE OF PRODUC110N 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

8. SU&IECT OF PROCEEDING 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

4. MATERIAL WILL BE PROOUCED TO 

Peter Arhangelsky 

5. lll'lE AND liME OF PROOUCl10N 

February 28,2014, 5:00PM EST 

In the matter of ECM Blofilms, Inc., Docket No. 9358 

1. MA'n:RtAL TO BE PRODUCED 

See Attached Schedule A for description of all documents and materials. 

Chief Administrative Law Judge 

D. MIChael Chappell 

federal Trade Commlsalon 

WB&hfngton, D.C. 20580 

9. COUNSEL MO PARTY ISSUlNI3 SUBPOENA 

Jonathan W. Emard, Peter Arhangelsky, Lou 

Caputo 

Emord & Associates, P.C. for Respondent 

ECM Biofilms, Inc. 

GENERAL INSTRUcnONS 

APPEARANCE 

The deiiYery of Ills &Utlpoena flO you by 1111J method 

p!aallod by the Commllllon'a Rules of Pradlc:le is 

legallervlce anCI may sulljoGt yotl flO II poll8lty 

lrnpaGect by law - faillue fD Clllilply. 

MonoN TO LIMIT OR QUASH 

The CCmrniSIIOn'a Rules 01 Pnlcdco .-quh U1at 0111 

mction to finit or quash Ida subpoena muet comply Ytilh 

CcJmm!aran Rule 3.34(c~ 18 C.F.R § 3.34(c). and In 

paltlt;ulari!Mit be llod witlin lhe NIUer of 10 clap after 

10tv1ce or 110 Umo foroornpllaMO. l1'lo original and ton 

copies ollhe petition must tie tiiDd beftn 1tlo 

Admlnlslratlva ..... Judge and with lhe Seaelary ollhe 

COmmlalon. ~by en 8111davttot Mnlcll of 

the doalment upon counaeJ llsiBd In Item&, and upon all 

olhor p8ltlea pntiCribed by tho Rulalt ol Pnlclloe. 

FTC Form'PO.e (Jev. 11V7) 

TRAVEL EXPENSes 

Tho Commlsalon's Rules of Prluitic8 require thllt r.. snct 

mJiaaoe be paJd by the party that 1'8Cluesled JDIIf' appeanmc:e. 

You lhould pn1ll8flt your dalm ID counaelllstDd In Item 9 tor 

PIIJIII8IIl tr rou ant pennanen1ly or temporarilp DYing 

somsw11era alher than the addnssa on lhlll subpoena and it 

would l8qVJra lllCCIIIMIYa travel for you ID appear. ,ou must get 

prior approval hm ooun&elllll1ed in """' 9. 

A CIDfJ1 of the Conrnlsaion's Aula& of Pnadlclt itavalable 

online at hltp·/M WCBu~ PaperCOilielll8 

IMillable upon laqUelt. 

TNm IIUbpoena dou not l8qUil1l ~ ~ OMB undet 

the Plipocwu.tc Redudlon Ad of 1980. 
PUBLIC DOCUMENT 

SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

ORGANIC WASTE SYSTEMS, INC. (UNITED STATES HQ) 

lNSTRUCTIONS 

.,-;:-~.'"!·~·.. . '" 

A. Unless otherwise specified, the time period covered by a numbered retJuest shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

slated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Ernord & Associates, P .C., 

3210 Soulh Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

rcquest(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are d1ose which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

rc:ccivc:d from or disseminuted to any other person or entity, including attorneys. accountants, 

directors. officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

maner if not so numbered. 

0. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the fonn in which it is available and describe the type of computer or 

other machinery required to read the documents involved. lfthe information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the infonnation in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objection.o; to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

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I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.3J(e)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of tiling a motion to limit or quash compulsory process. 

1. The Federal Trade Commission's Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions 10 quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of I 0 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including aU appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22{g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c){2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See AU Protective 

Order at 2, ,4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If any requested material is withheld based on a claim of privilege. submit together with such 

claim a schedule ofthe items withheld. For each item withheld, the schedule should state: (a) 

the item's type, title, specific subject moUer and date; (b) the names, addresses, positions and 

oraanizations of all authors or recipients of the item; and (c) the specific grounds for 

2 
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PUBLIC DOCUMENT 

claiming that the item is privileged. Jf only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the tenn "documents,. 

shall include all records, books of account. worksheets, checks, Instructions, spccificutions, 

manuals, reports, books, periodicals, pamphlets, publications, row and refined data, memoranda, 

gmphs, drawings. notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence 1

• agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

I. All documents conceming2 ECM BioFilms, Jnc.3 

2. All correspondence between 0. W .S. and any employee, representative, or 

distributor of ECM BioFilms, Inc. 

3. All documents sent or received by OWS employees making reference to ECM 

BioFilms, Robert Sinclair, or ECM BioFilms Master Batch Pellets 

1 The tenn "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

· emails, documents appended to emails, repons and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The tcnn "concerning" is intended, used, and defined in its broodest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicaling, explaining, or about the documents 

subject to any and all individual reque.~s in thi~; subpoena. 3 ECM BioFilms Inc. is an American corporation with its principal place of business at 

Victoria Place- Suitt 225, 100 South Park Place, Painesville, Ohio 44017, United States. 

3 

. :. 
PUBLIC DOCUMENT 

.4. All documents concerning Gary Plastic Packaging Corporation4 (GPPC) and/or 

any test or report (including any and all notes and raw data) performed or written for GPPC, 

including. but not limited to, .. Study GLH-2: Review of Several Documents, Reports and 

Statements on Biodegradation ofECM Masterbatch Pellets." 

5. A It documents concerning any test or report (including any and all notes and raw 

data) performed or written about a product or substance containing any product of ECM 

BioFilms, Inc., including "ECM Masterbatch Pellets." 

6. All documents concerning any test or report (including any and all notes and raw 

data) performed or written about products or substances claims to be biodegradable. 

7. All correspondence between 0. W.S. and any employee or representative or 

officer of GPPC. 

8. All correspondence between O.W.S. and any member, employee, representative, 

or officer of the United States Fcderol Trade Commission. 

9. All documents concerning the education, training, and experience of Mr. Bruno 

de Wilde. 

10. A list ofall tests and reports authored by Mr. de Wilde. 

II. AU employee evaluations of Mr. de Wilde. 

12. All documents written or authored by Mr. de Wilde concerning biodegradable 

plastics. 

13. All documents concerning the education, lraining, and experience of Mr. Richard 

Til linger. 

14. All employee evaluations of Mr. Tillinger. 

4 Gary Plastic Packaging is an American company located at 1340 Viele A venue, Bronx, 

NY I 0474, United States. 

4 
•. • :_·~ •- •: : I ~ •_: .. •• • ! . ', • ~ ... -'- - -- .... I_:::;· -. : -~ ... ~:.!-- ; ' . :-. -~ 

PUBLIC DOCUMENT 

IS. A list of all tests and reports authored by Mr. Tillinger. 

16. All documents written or authored by Mr. Ti llinger concerning biodegradable 

plastics. 

17. All documents concerning or related to any version ofthe American Society of 

Testing and Materials' ("ASTM") testing methods 05511 and 05526. 

INSTRUCTIONS FOR COMPLIANCE _BY DELIVERY OF DOCUMENTS 

lf documents are delivered by hand, overnight delivery service, cenilied mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who panicipated in or supervised the collection 

of the documents5

, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regulorly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees ofO.W.S who have knowledge of such 

maners, can authenticate the documents and materials produced, and who can 

testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approKimate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced: and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

s "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description ofDocumeots Requested" section. 

5 

··.·-:-·· 
PUBLIC DOCUMENT 

A declaration that stntes: 

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and oorrect. 

Executed on [date). 

[Signature of party executing the declaration] 

Respectfully submitted, 

lsi JonaJhon W. Emord 

Jonatlum W. Bmord, Esq. 

EMORD & ASSOCIATES. P.C. 

J 1808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202466-693 7 

Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM Biof'ilms, Inc. 

6 

i ••·•·::-=-~~..:.~·.ao•"7··~·-;::::::- 1...."'"?[=-::· -· 
··~: .. ~-~-:!- .. ····-···· -:- : • t:':: ·t 

PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OmCE OF ADMINISTRATIVE LAW JUDGES 

In the Maner of 

ECM BioFilms, Inc., 

a corporation, also dlb/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

... ·_-_ i..-~ ·-· 

Commission Rule 3.3l{d) stales: "In order to protect the parties and lh.ird parties 

agai.cst improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3I(d). Pursuant to Commission Rule J.JI(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

D. MiebaelU 

Chief Administrative Law Judge 

Date: October 22, 2013 

- . ~.,. 
'" 

PUBLIC DOCUMENT 

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submined or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Orderj shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material .. shall refer to any docwnent or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license nwnbcr, state-issued 

Identification nwnber, passport number, date ofbirtb {other than year), and any sensitive 

health information identifiable by individual, such as rm individual's medical records. 

"Document., shall refer to any discoverable writing. recording. transcript of oral 

testimony, or electronically stored information in rhe possession of a party or a third 

party. "Commission .. shall refer to the Federal Tmdc Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

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

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

entitled to confidentiality under the Federal Trade Commission Act, or WlY regulation, 

interpretation, or precedent concerning document-; in the possession of the Commission, 

as well as any infonnation taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidcntia1 material for the purposes of 

this Order where the submitter has requested such confidential treAtment. 

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

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

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from \bird parties, shall provide to each third 

party a copy of this Order so as to inform each such third pnrty of his, her, or its rights 

herein. 

S. A designation of confidentiality llhull constitute a representation in good fPith IUld after 

careful determination that the materia) is not reasonably bcUeved to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material&! defined in Paragraph 1 ofthis Order. 

2 
... - 1. -::. . ·- .... ~ .. ,--

PUBLIC DOCUMENT 

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

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

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

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

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

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

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

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

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

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the ponions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasups therefor. 

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

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

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

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

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

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

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

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

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

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

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and21 of the Federal Trade Commission Act; or any other legal obUgation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper tued or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be fJlcd In 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the AdminiStrative Law Judge. provided, however. that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on tbe public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may flle on the public record a duplicate copy wbicb also 

contains the fotmerly protected material. 

3 
-.-.·.;-·. ··; 

·-~· ""·J l .. 

PUBLIC DOCUMENT 

1 0. If counsel plans to introduce into evidence at the hearing MY document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advwtce notice to the other party or third party for purposes of allowing that 

party to seck an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the docwnent or transcript. the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted. all documents and transcripts shall 

be part of the public record. Where In camera treatment is granted. a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third purty, the recipient of the discovery requesl shall promptly notifY 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the· Admjnistrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to chaUenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability of Rule 4.11 (e) of the Commission's 

Rules ofPractice, 16 CFR4.1l(e),to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel i.o the 

ptcparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with aJl notes, memoranda or other papers containing 

confidential infonnation. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters. provided, however. that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4. 12. 

13. The provisions of this Protective Order. insofar as they restrict the communication 

and use of confidential discovery Dltlterial, shaJJ, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

4 

••· ••• I 

• l 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

STATE OF OHIO 

COUNTY OF .MONTGOMERY 

) 

) 

) 

) 

) Docket No. 9358 

) 

) 

) AFFIDAVIT OF RICHARD 

) TILLINGER 

) 

) 

) 

SS: 

I, Richard Tillinger, affiant herein, after first being duly cautioned and sworn, state as follows: 

I. From November, 1991, through December, 2004, I was employed full time at 

O.W.S. Inc. ("O.W.S.") as a manager. I have been a contractor for O.W.S. from December, 

2004, to the present. I am in possession of the majority ofO.W.S.'s business records, including 

what records it has regarding 0. W.S. 's customers and testing, as well as other records that 

O.W.S. keeps in the ordinary course of business. 

2. I have personal knowledge of and am competent to testify as to all matters stated 

in this affidavit. 

3. O.W.S. is an independent testing company that tests various types of material for 

biodegradability. Some of the conventional plastics that O.W.S. tests might contain additives. 

Some of the conventional plastics that O.W.S. tests that might contain additives might contain 

ECM BioFilms, Inc.'s ("ECM") Master Batch Pellets ("ECM Additive"). 

4. Since 2007, O.W.S. has performed hundreds of tests for over one hundred 

customers. 

Exhibit · 
PUBLIC DOCUMENT 

5. When a customer submits material to O.W.S. to test, O.W.S. only knows as much 

about the material as the customer willingly divulges. As a result, O.W.S. often tests material 

without knowing what the material is, including whether the material is a biopolymer plastic or a 

conventional plastic. 

6. Of the conventional plastics that it tests, O.W.S. may or may not know that the 

material it is testing contains an additive. Even if 0. W.S. knows that a conventional plastic 

contains an additive, it may or may not know whether it is an ECM Additive. 0. W.S. has no 

way to identify whether a given product contained an ECM Additive or is related to ECM in any 

way unless this information is divulged by the customer. O.W.S. does not know what is in any 

ECM product and thus cannot deduce from its test reports whether any given material contains 

ECM Additives. IfO.W.S. were required to produce every document submitted by any customer 

relating to ECM or ECM Additives, in order to fully comply it would have to: (I) search all of its 

records for communications that positively state ECM Additives were in the material tested, (2) 

review each of the hundreds of tests that it has performed in the relevant timeframe in order to 

exclude tests in which the customer conclusively stated that the material did not contain ECM 

Additives, (3) contact every other customer for every other test performed in the relevant 

timeframe to inquire whether samples submitted by that customer contained ECM Additives, and 

(4) for each test that contained ECM Additives, examine that customer's confidentiality 

agreement, obtain the customer•s consent and/or allow them to intervene. To O.W.S.'s 

knowledge, very few tests concern ECM. 

7. O.W.S.'s customers include, but are not limited to, manufacturers testing their 

own products, manufacturers testing their competitors' products, trade organizations, and 

2 
PUBLIC DOCUMENT 

attorneys testing their clients' products. Several ofO.W.S.'s customers are competitors ofECM 

in regards to additives, while many more are competitors in the biodegradable materials industry. 

8. The majority ofO.W.S.'s customers require strict confidentiality, through 

confidentiality agreements or otherwise. Information concerning O.W.S.'s attorney customers is 

privileged. O.W.S. vehemently protects its customers' confidential information, and has refused 

to distribute information concerning ECM's test results for this reason. O.W.S. 's affirmatively 

represents to its customers in its Terms and Conditions: "Confidentiality Statement. The Testing 

Facility will treat strictly confidential all relevant information on the samples disclosed by the 

Sponsor as well as all results obtained in executing the Test." 

9. O.W.S. does not own information concerning its customers' tests-that 

information belongs to the customers. 

10. 0. W.S. 's regular business operations consist of only myself, as a consultant, and 

one O.W.S. employee. 

11. O.W.S.'s annual revenue over the last three years (2011, 2012 and 2013) was 

approximately $698,000. O.W.S.'s annual profit over the same time period was approximately 

$11,000. 

12. O.W.S. deals with the Biodegradable Products Institute ("BPI") on behalf of 

O.W.S. customers regarding requests for certification of the customers' own products. BPI 

administers a certification mark for compostable products, and many O.W.S. customers seek this 

certification. Communications with the BPI in this capacity can include confidential and 

proprietary information such as material or product formulations, product construction, 

manufacturing techniques, testing results, and marketing plans. O.W.S. also participates, along 

with a representative of the BPI, on subcommittee 020.96 of the American Society for Testing 

3 
PUBLIC DOCUMENT 

and Materials ("ASTM"). Robert Sinclair ofECM is also on this subcommittee. While some 

O.W.S. customers are members of the BPI, O.W.S. is not. 

13. Testing under ASTM standards D5511 and D5526 constitutes a significant 

amount ofO.W.S.'s business. 

14. As of the filing of the Motion to Quash or Limit Subpoena ("Motion"), O.W.S. 

has collectively spent approximately 60 hours at an internal cost to O.W.S. of approximately 

$5,500 searching for responsive documents and meeting with counsel in regard to opposing the 

Subpoena, document collection, and production. As of the filing of the Motion, O.W.S. has 

incurred approximately $19,000 in legal fees. 

15. The Subpoena has and continues to place extensive burdens on O.W.S. 

4 

--~~--~~----~~. ----
PUBUC DOCUlvlENT 

FURTHER AFFIANT SA YE'lll NAUGHT. 

Notary Public. 

DIANE E. MaclEOD 

NOTARY PUBUC ·STATE OF OHL 

MY COMMISSION EXPIRES // ~ 2.-4 ·I g 

5 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) Docket No. 9358 

) 

) 

) 

) 

) 

) 

) 

STATEMENT REGARDING MEET AND CONFER PURSUANT TO 16 C.F.R. § 3.22(gl 

AND ADDITIONAL PROVISION 4 OF THE SCHEDULING ORDER 

I, Christine M. Haaker, counsel for non-party 0. W.S. Inc. ("'0. W.S.") respectfully submit 

this Statement pursuant to 16 C.F.R. 3.22(g). Prior to filing the Motion to Quash the Subpoena 

("Motion") served on O.W.S. by ECM Biofilms, Inc. ("ECM"}, I met and conferred with 

counsel for ECM in a good faith effort to resolve the issues raised by the motion via written 

correspondence and telephone. We have been unable to reach an agreement. 

On or about February 13, 2014, ECM attempted to serve a subpoena to ''Organic Waste 

Systems, Inc." at 7155 Five Mile Rd., Cincinnati, OH 45230 (the "Ineffective Subpoena''). A 

copy of the Ineffective Subpoena is attached as "Exhibit A.") No entity named Organic Waste 

Systems, Inc. exists at that address. 

In any event, O.W.S. became aware of the Ineffective Subpoena on February 27, 2014.1 

notified ECM's counsel of the Ineffective Subpoena and that no entity named Organic Waste 

Systems, Inc. exists at the address at which it was served. (See "Exhibit B.") As a professional 

courtesy, I agreed to accept service of a subpoena on behalfofO.W.S. if that was the party ECM 
PUBLIC DOCUMENT 

information that was irrelevant and/or confidential and proprietary and asked-should ECM 

eventually serve a subpoena to 0. W .S.-that ECM consider narrowing the scope of the requests. 

ld Also on February 27, 2014, I spoke to counsel for ECM on the telephone. During this 

conversation, I again relayed my concerns about ECM seeking irrelevant and confidential 

material and gave suggestions on how to narrow the scope of the requests. 

On February 28, 2014, ECM served the subpoena currently at issue ("Subpoena") on 

O.W.S. by emailing a copy ofit to me. (See "Exhibit C.") While the Subpoena omitted a few 

requests from the Ineffective Subpoena, it added additional requested documents and still sought 

burdensome production and confidential information regarding O.W.S.'s customers that has no 

relevance to ECM. For example, the Subpoena added Request No. 4, which actually makes it 

significantly more broad and invasive than the Ineffective Subpoena. 

On March 6, 2014, I emailed Lou Caputo ("Mr. Caputo")1

, one ofECM's counsel, to 

inform him that the Subpoena was still too broad, sought information already in the possession of 

ECM, was unduly burdensome and expensive to comply with, and sought confidential 

information from O.W.S.'s customers that is unrelated to this case. (See Exhibit D.'') I 

requested that we discuss these issues. ld On March 7, 2014, I sent Mr. Caputo detailed 

objections ("March 7, 20 14 Objections") to each request and, again, requested that we discuss 

them. (See "Exhibit E."). 

In the March 7, 2010 Objections, I again informed Mr. Caputo that the Subpoena sought 

test results ofO. W.S. customers other than ECM, that information regarding those tests are the 

customer's property and not O.W.S.'s, that the confidentiality ofO.W.S.'s customers is 

absolutely critical to its business. and that O.W.S. performs hundreds of tests a year and has no 

1 When Mr. Caputo emailed the Subpoena to me at 7:15p.m. on friday, February 28,2014, he indicated he would be traveling 

but checking his omail. Thorofora, [ emailcd rather than telephoning him. 

2 
PUBLIC DOCUMENT 

reasonable way to identify which tests contain ECM (and in many cases, may not even know 

which tests contain ECM). /d. I also informed Mr. Caputo that compliance with the subpoena 

would require O.W.S.-a non-party with no stake in this action-to search through hundreds of 

tests in order to identify responsive documents and individually contact each customer whose 

testing involved ECM to either obtain their pennission to produce the documents or allow them 

the chance to intervene. I requested that Mr. Caputo limit the Subpoena-to the extent it sought 

information from O.W.S. concerning its customers-to information concerning ECM's testing of 

its own products. I did not hear back from Mr. Caputo. 

On March 10, 2014, I asked Mr. Caputo to respond to my March 7, 2014 Objections. 

(See "Exhibit F.") Later that day, Mr. Caputo emailed me general responses to those objections. 

(See "Exhibit G.") Mr. Caputo agreed to eliminate Requests Number 2, 7, and 9. ld Mr. 

Caputo also agreed to limit the time frame for Requests No. 4, 5 and 10, and limited Request No. 

5 to tests or reports concerning ECM and/or a plastic product containing the ECM additive. /d. 

Even with these limitations, the Subpoena continues to be burdensome and to seek confidential 

information of and owned by O.W.S.'s other customers. 

On March I 1, 2014, at I :00 p.m. EST, I met and conferred with Mr. Caputo via 

telephone. My associate, Jeremy Smith, was also present. While we discussed each remaining 

Request individually, I expressed that 0. W.S.'s main concerns encompass multiple requests 

(Nos. 1, 4, 5, and 10) and are that: (1) the Subpoena seeks confidential information ofO.W.S. 

customers and that production ofthose documents would harm O.W.S.'s relationship with those 

customers, and (2) that even if the Subpoena were limited to information concerning other 

customers' tests that relate to F.CM (for example, materials submitted by other customers for 

3 
PUBLIC DOCUMENT 

testing that contain ECM Additives), searching for those documents would be incredibly 

burdensome. 

I explained that O.W.S. tests hundreds of products a year, that many of these tests do not 

concern ECM • and that 0. W .S. may or may not know whether a test concerns ECM. I 

explained that, in order to produce documents concerning customers other than ECM that relate 

to ECM or the ECM Additive, O.W.S. would have to: (I) search communications regarding 

every one of the hundreds oftests it has performed in the relevant time frame; (2) discern each of 

the customers with such tests are covered by a confidentiality agreement, (3) review the 

confidentiality agreement for requirements; (4) individually contact each customer in accordance 

with the specific terms of their confidentiality agreement to obtain permission to produce their 

documents or to aHow the customer the chance to object; and (5) review and redact those 

responsive documents. I informed Mr. Caputo that O.W.S. is a smaU company and such an 

extensive and expensive task has the potential to substantiaUy injure O.W.S.'s relationship with 

its customers and costs O.W.S. significant amounts in comparison to its revenues and profits. 

For these reasons, I again requested that O.W.S. only be required to produce documents 

concerning ECM testing of ECM products, and not be required to produce documents concerning 

tests for other customers, whether or not they relate to ECM. Mr. Caputo said he would take this 

Request to his client. 

To avoid such a monumental search I also asked Mr. Caputo if he could identify any 

specific customers or specific documents that he thought would be helpful. He could not. I 

asked him what exactly he was looking for and what information he hoped to receive from 

0. W .S. that he thought would be helpful or relevant to his client's case. I Ie told me that he did 

not know what he was looking for, and that he thought the broad range of documents requested 

4 
PUBLIC DOCUMENT 

in the Subpoena would be relevant because O.W.S. has been mentioned by other parties in 

discovery. 

I asked to limit Request Number 3 to communications with the Federal Trade 

Commission concerning ECM or their Green Guides. Mr. Caputo said he would take this 

request to his client. 

I asked to limit Request Number. 4 to communications with members of the BPI where 

those members were acting in their capacity as members of the BPI. I further asked to limit this 

Request to exclude communications that also involved Robert Sinclair ("Mr. Sinclair"). Mr. 

Caputo said he would take these requests to his client. 

I asked to limit Requests 6 and 8 to documents constituting an already-existing resume or 

curriculum vitae for Bruno De Wilde and Richard Tillinger or biography material perhaps 

submitted for a speaking engagement, and to exclude a comprehensive list oftraining, 

experience, or employee evaluations. Mr. Caputo said he would take this Request to his client. 

I asked to limit Request Number 10 to documents that Mr. Sinclair did not have access to. 

Mr. Caputo said he would take this Request to his client. As of the filing of this Motion, I have 

not received a response to these requests to limit. 

Despite these aforementioned good faith efforts, I have been unable to reach agreement 

with counsel for ECM regarding the issues set forth in the Motion. 

5 
PUBLIC DOCUMENT 

Dated: March 12, 2014 

THOMPSON HINE LLP 

Austin Landing I 

10050 Innovation Drive, Suite 400 

Miamisburg OH 45342 

Dayton, Ohio 45401-880 I 

Telephone: (937) 443-6822 

Facsimile: (937) 443-6635 

E-mail: Christine.Haakcr@Thompsonhine.com 

Attorney for Third-Party 0. W.S. Inc. 

6 
PUBLIC DOCUMENT 

"' 

:Ernord & Associates 

A Professional Corporation 

_W_A_S_H-.IN -GT-ON! VrRGINl~~T-PHOENlX-··~ 

VIA UPS 

Organic Waste Systems, Inc. 

7155 Five Mile Road 

Cincinnati; OR 45230 

February 13,. 2014 

1 l 808 WOLF RUN LANE 

CLIFTON, VA 20124 

3210 S. Gli.BEJnROAD 

SUJTE4 

CHANDLER, AZ 85286 

(602) 388-8899IFAX (602)393-4361 

1050 SEV£NT£ENTFI STJUffiT, N.W. 

StnTE600 

WASHINGTON, D.C. 20036 

(202) 466-693 71 FAX (202) 466-6938 

Lou F. Caputo, Esq. 

602.388.8901 

Jcaputo@emordcom 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Sir or Madam: 

P,ursuantto the Federal Trade Commission's Rules ofPractice, please find enclosed 

Respondent ECM BioFjhns, lnt;.'ssubpoenaduces tecum to O.W.S. This subpoena requests the 

production of documents and other materials. Inclu~d with the subpoena is Schedule A, which 

describes the instructions and specific requests ofRespondent and a copy of the Protective Order 

issued in this matter; 

Please provide all requested documents no later than February 28, 2014. We welcome 

you to contact us with questions. 

_, ..... ~--·,.,~.,.==:=;:::==--~===="""""=::== 

EMORD&ASSOc!A'rnS, I'.C. 

WASfllNGTON, D.C.! VlRGlN!,.ll.l ARIZ:ONA 

Sincerely, · 

Peter A. Arhangelsky 

Lou F. Caputo EXHIBIT 

A 

(20'.l) 466-69 3 7/F A X (2 02) 46(,-GCJj I! 

WWW.'EMORD.COM 
PUBLIC DOCUMENT 

Provided by the Secretary of the Federal Trade Commls$ion. and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

1. TO 

General Counsel and/or other Executive for 

Organic Waste Systems 

7155 Five Mile Road 

Cincinnati, OH 45230 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to j:iroduoo and f*mlt Inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or taAgiblethitfgs~ at the date and.time specified in Item 5, anti at the requestofOounsellisted in ltem9, in 

the proce~ding ~ iri ~ttm~· 6. 

3. PLACE OF PROOUC'tlbN 

Emord &Associates, P.O. 

321 () S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

-~. SVBJECT ()f·PROOEEOING 

4. W.1EfMl WJU·BE PRODUCED lO 

. Peter Arhangelsky 

5. OAl'E AND TIME OF AAOOUCTION 

February 28,2014, 5:00PM EST 

In the matter of ECM BioFifms, Inc., Docket No. 9358 

1: MA"tERIAL'TOBE PRObUcED 

See Attached Schedule A for description of all documents and materials. 

8. ADMINISTRA11VELAW JUDGE 

Chief Admfnistrative Law Judge 

D. Michael Chappell 

Federal· Trade Commission 

Washington,· D;C .. 20580 

DATESJGNEO 

;} j 13)1"1 

9. COuNsEL AND PARTY ISSUING SUBPOENA 

Jonathan W. Emord; Peter Arhangelsky, Lou 

Caputo 

Emord & Associates, P.C. for Respondent 

ECM BioFilms, Inc. 

GaERAI.,!NSTRUCTJC>NS 

APPEARANCE 

:me deliVery of this subpoena to you by any ·method 

pl'eSaibed bylhe ~·s Rules of Pntetioe is 

legal·.$eNite anti may: subject y()U to a penalty 

~by law for fililure to cor'nply. · 

MOTION TOUMit OR QUASfl 

The Commission's Ru~ of Piacdc» require that any 

motion to limit or quash this subpoena must comp!y with 

Commiftlcn Rule :t34(c), 16 CF.R. § 3.34(c). and in 

partlculatmust b& filed Within the earlier of 10 days after 

service or 1he time ror compliance. Tl'lo original and ten 

copies af1he petition must be 'fited before 1t1e 

~Law JiJdge:.and With the S8aetary of the 

Commission. aQCOn'IP<lrlied by an i!flidavit at aervlce of 

the·doc:Ument UIX»i. coun$81 IGted lrl Item 9,. and upon au 

olt$rpatties prescribed by tl'$ Rules tJf Pnidice; 

TRAVEL EXPENS!!S 

The Commission's Rules of Practice ~we that:fees and 

mileage be paid by the party that requested your appearance. 

You should jm!Sent your ctalm to counsel listed in .Item 9 for 

payment. If you are perrilanel'itly or temporarily living 

somewhere o1het 1han the address on this subpOena 3nd it 

would require exbf!Ssivetravel fOI' youm appear, you must get 

prior CIPPI'OYal from ®uosellisted in ~m 9. 

Atopy of lhe Commission's Rules. ofPra<:tice is available 

onGne at bl:tp·/JblftvtEICRulesaff!mu. P;Jpercopies are 

available uPOn request. 

This subpOena does not PiKJUil1:1 approval by Qfl.m Ul'lder 

the Pap$WOrk Reduction Act of mo. 
PUBLIC DOCUMENT 

SCHEDULE "A" TO SUBPOENA DUCES TECUM DffiECTED TO 

ORGANIC WASTE SYSTEMS, INC. (UNITEDST ATES HQ) 

INSTRUCTIONS 

A. Unless otherwise-specified, the time period covered by a numbered request shall be limited to 

t11e time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be ·delivered to Counsel for Respondent at the following address: 

Emotd &Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

cortsecutively, and each page should be marked with a unique "Bates" document tracking 

number~ 

E. Documents covered by these numbered requests are those which are in your possession or 

.under your actual or constructive custody or control, whether or not such documents were 

received from ()r disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number ifthe documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to tc:ad the documents .involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable fonn and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 
PUBLIC DOCUMENT 

I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3 .38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §335, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature ofthe documents, communi.cations, or tangible things not 

produced or disclosed .. and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the di.lty to search set forth in 

§3.3l(c)(2) except to the extent that the· Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

L The Federal Trade Commission's Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your coiwenience, Rule 3.34 states in relevantpart: 

(c) Moti"ons to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subp.oena shall be filed 

within the earlier of l 0 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.3l(c)(2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22,2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting.discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to infotrrt third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ,4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If anyrequestedmaterial is withheld based on a claim of privilege, submit together with such 

claim a schedule oft.he items withheld. For each item withheld, the schedule should state: (a) 

the item's type, ti.tlc, specific Sllbject matter and date; (b) the names, addresses,. positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

7. 

.·.~·'.~:·:':?!F r-::::·':·> ~:y 

I 

i· 

:·. 

' 

::: 
PUBLIC DOCUMENT 

cl~itning that th,e item is privileged. lfonly part of a responsive document is priVil<.:ged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTlON OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the term "documents" 

.shall include all records, books of account, worksheets, checks, instructions, specifications, 

manua1s, reports, books, periodicals, pamphletS, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence 1

, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customerrecords, log files recommendations, and any other data recorded in readable 

and/or retrievaiJl<; form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents concemmg2 ECM BioFihns, Inc.3 

2. All correspondence between O.W.S. and any employee, representative, or 

distributor ofECM BjpFilms, Inc. 

3. All documents sent or received by OWS employees making reference to ECM 

BioFilms, Robert Sinclair, or ECM BioFilms Master Batch Pellets 

1 The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities, 

2 The term "conceming" is 1ntem:ied, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, dise\Jssine,. referencing, implicating., explaining, or abuut the documents 

subject t0 any and all individual requests in this subpoena. 

3 ECMBioFilms Inc. is an American corporation with its principal place of business at 

Victoria Place- Suite 225, 100 South Park. Place, Painesville, Ohio 44077, United States. 

3 

.. 

; 
·1:::::;~ .. ~~,.· .. -~ '~-::,>~? i:~-~:~~~~-:;.~-~::.·~-(:~L · r1~:;:;·"_,?f :":.:·.;::_; :~~-:::.:::~_:· :.;: 

1-

PUBLIC DOCUMENT 

; 4. All documents concerning Gary Plastic Packaging Corporation4 (GPPC) and/or 

any test or report (including any and all notes and raw data) performed or written for GPPC, 

including, but not limited to, "St).ldy GLH-2: Review of Several Documents, Reports and 

Statements on Biodegradation ofECM Mastetbatch Pellets." 

5. All documents concc;:ming ariy test or report (including any and all notes and raw 

data) performed or written about a product or substance containing any product of ECM 

BioFilms, Inc., including "ECM Masterbatch Pellets." 

6. All documents concerning any test or report (including any and all notes and taw 

data) performed or written about products or substances claims to be biodegradable. 

7. All correspondence between O.W.S. and any employee or representative or 

officer of GPPC. 

8. A11 correspondence between O.W.S. and any member, employee, representative, 

or officer of the United States Federal Trade Commission .. 

9. All documents concerning the education, training, and experience of Mr. Bruno 

de Wilde. 

l 0. A list ofall tests and reports authored by Mr. de Wilde. 

11. All employee evaluations ofMr. de Wilde. 

12. All documents written or authored by Mr. de Wilde concerning biodegradable 

plastics. 

13. All documents concerning the education, ~ining, and experience of Mr. Richard 

Ti1linger. 

14. All employee evaluations of Mr. Tillinger. 

4 Gary Plastic Packaging is an American company located at 1340 Viele A venue, Bronx, 

NY 10474, United States. 

4 

i 
PUBLIC DOCUMENT 

15. A list of all tests and reports authored by Mr. Tillinger. 

16. All 'documents written or authored by Mr., Tilling~r concerning biodegradable 

plastics. 

17. All docuhients concerning or related to any version ofthe AmeriCan Society of 

Testing and Materials' ("ASTM") testing methods D5511 and D5526. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your ,response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, artd orgartizations of all persons whose files 

were s,earched and all persons who participated in or supervised the collection 

of the documents5

, and a brief description of the nature ofthe work that each 

person performed in connection with the collecting the documents. 

A statemelitthat the, search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near tbe time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees ofO.W.S who have knowledge of such 

matters, can authenticate the documents and materials produced, and who can 

testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

5 "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested" section. 

5 
PUBLIC DOCUMENT 

A declaration that states: 

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date]. 

[Signature ofpa.rty executing the declaration) 

Respectfully submitted, 

Is/ Jonathan W Emard 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202-466-6937 

Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

6 
PUBLIC DOCUMENT 

In the Matter of 

ECM BioFil~ Inc .. 

UNITED STATES OF Al'VIERICA 

FEDERAL TRADE COMMISSION 

OFF1CE, OF ADMiNlSTRATIVE LAW JUDGES 

DOCKET NO. 9358 

a corporation, also dtb/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Conunjss!on Rule 3.3l(d) states: "In order to protect the parties and third parties 

against improper use and disclosure ofconfidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to tlus section." 16 C.P.R. 

§ 3.31 (d). Pursuant to Comrriission Rule 3 J 1 (d), the protective order set forth in the 

appendix to 'that section is attached verbatim as Attachm.ent A and is hereby issued. 

ORDERED: 

Date: October 22, 2013 

F 

! 

i: 

; 

'· 
PUBLIC DOCUMENT 

ATTACHMENT A 

For the putpose of protecting the interests of the parties and third parties in the 

above~captioned matter against improper use and disclosure of confidential information 

submitted ot produced in connection with this matter: 

IT IS HEREBY OllDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order'') shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "c9nfidential material" shall refer to any docTJine.fit or portion 

thereof that contains privileged, competitively sensitive infonnation, or sensitive personal 

information. "Sensitive personal information" shall refer to, hut shall riot he limited to, 

an individual's Social SecUrity number; taxpayer identification number, fmancial account 

number, credit card or debit card number, driver's license m.nnber, state~issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document'' shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored infonnation in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attortleys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

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

Federal Trade Commission investigation or during the cotu~se of this proceeding that is 

entitled to confidentiality under the Federal Trade Corrunission Actj or any regulation, 

inierpretation; or preeedent concerning documents in the possession of the Commission, 

as well aS a11y inf.o.l'U1atlO:n taken from any portion of such document, shall he treated as 

confidential material for: purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

thls Order where the S\lbmitter has requested such confidential treatment 

3. The parties and any third parties; in co1nplying with informal discovery requests, 

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

responsive document or portion thereof as confidential roateri~:tl, including doc;uments 

obtained by thent from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to intonn each such third party of his, her, or its rights 

herein, 

5. A designation of confidentiality shaH constitute a representation in good faith and after 

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

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 
PUBLIC DOCUMENT 

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

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

or if an entir-e folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

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

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

info:r:rilation contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

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

medium on which the document is produced. Masked or otherwb-e redacted copies of 

documents may be prodticed where the portions delete4 contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been. deleted and the reasons therefor~ 

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

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

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

cOnsultants for this proceeding; (b) judges and other court personnel of apy court having 

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

record for any respondent, their associated attorneys and other employ~es of their law 

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

outsid~ counS"el in the preparation or hearing of this proceeding including consultants, 

provided they are notaffiliated in any way with a respondent and have signed. an 

agree.m~nt to abide by the tertns of the protective order; and (e) any witness or deponent 

who mayhave authored or received the information in question. 

8. Disclosure of confidential material to any perSon described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Comn1ission may, subject to taking appropriate steps to preserve the confidentiality of 

sucb, material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed. by the Party filing such papers, and such papers shall be flled in 

camera. To the extent that SliCh material was originally submitted by a third party, the 

party irreluding the materials in its papers shall immediately notify the submitter of such 

inClusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge. provided .• however, that 

such pa~s may be fumished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or. 8. Upon or after filing any paper containing 

confidential material) the filing party shall file on the public record a duplicate cepy of 

the paper that does not reveal cohfidential material. Further, if the protection for any 

such material expires; a party 1nay frle on the public record a duplicate copy which also 

contains the fonnerly protected material. 

3 
PUBLIC DOCUMENT 

10. If counsel plans tQ introduce into evidence at the hearing any document or transcript 

containing-confidential material produced by another party or by a third pa1ty, they shall 

provide advance notic:e to the other party or third party for put-poses a fallowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript. the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where su~h an order is granted, all document<; and transcripts shall 

be part of the public record. Where in camera treatment is granted. a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

ll. If any party receives a discovery request in any investigation or in any other 

proceeding o:r matter that may require the disclosure ofconfi(lentialmaterial submitted by 

another part.y or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt ofsuch request. Unless a shorter tirqe is mandated by an order of 

a eourt. such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

covet letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as reqWring the recipient of the discovery request or anyone else covered by 

this Qrcier to challenge or appeal any order requiring production of co.!ifidential material~ 

to subject itselfto any penalties for non-compliance with any such order, or to seek any 

relief from the-Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge :the disclosure ofconfidential material. In 

additio~, nothing herein shall limit the applicability of Ittile 4.11 (e) of the Commission's 

Rilles of Practice, i 6 CFR4J 1 (e), to discovery requests in another proceeding that are 

direc~d to the Comrojssion. 

12 At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all note$. memoranda or other papers .containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

ufjudicial.tevlew, the parties shall return documents obtained in this action to their 

submitters; provided. however, that the Commission's obligation to return documents 

shall be governed by the provisions ofRule 4.12 ofthe Rules ofPractice,16 CFR 4.12. 

13. The provisions of this Protective Order. inso-far as they restrict the communitation 

and use of confidential discovery material. shall, without written permission of the 

submitter or further order ofthe Commission, continue to be binding after the conclusion 

of this proceeding. 

4 
PUBLIC DOCUMENT 

THOMPSON ATLANTA CLEVElAND DAYfON WASHINGfON, D.C. ---Jrl(I~E·~~~--~~~-C-I-N-Cl_N_N-AT-1~~~~-c-o-L-U-M-BO-s~~~---N-PW-Y-O-RK----------~-

February 27,2014 

Via Electronic Mail 

Jonathan W. Emord 

Peter A. Arhangelski 

Lou F. Caputo 

3210 S. Silbert Rd., Suite 4 

Chandler, AZ 85286 

RE: In the Matter of ECM BioFilms, Inc., Federal Trade Commission Docket No. 9358 

Mr.Emord: 

Please be advised that our firm represents O.W.S. Inc. ("O.W.S."). A subpoena addressed to Organic 

Waste Systems, Inc. was delivered to 7155 Five Mile Rd., Cincinnati, OH 45230 (the "Subpoena") in 

regard to the above-captioned case. A copy of that Subpoena is attached for your reference. 

Service of the Subpoena is ineffective. No entity named Organic Waste Systems, Inc. exists at the 

address to which the Subpoena was delivered. Organic Waste Systems, Inc., is a recently formed 

(October 3 I, 20 13) corporation that exists under the laws of California. 

In the event that you intended to serve the Subpoena to O.W.S., and ultimately decide to serve a subpoena 

on O.W.S, our firm will accept service on behalfofO.W.S. and work with you in regard to anynecessary 

production. However, if you intend to serve a subpoena on O.W.S. similar to the Subpoena, to streamline 

the process and avoid potential issues in advance, we ask that you reconsider the breadth of the requests. 

As written, the Subpoena requests in several instances information that is completely unrelated to ECM 

BioFilms, Inc., as well as information that in all likelihood is confidential and proprietary to the recipient 

as well as the recipient's customers, which may be subject to confidentiality and non-disclosure 

agreements. 

Please feel free to contact me if you have any questions or if you would like to discuss this matter. 

Sincerely, 

Christine Haaker 

Christine.Haaker@ThompsonHine.com 937.443.6635 (facsimile) 937.443.6822 (telephone) 770500.2 

---·· ·------~-----·-·-~-----·---·-····-·········-.. -- ........... _._., ____ .. _ .. ______ _ THOMPSON HINE Llr 

ATTORNEYS AT lAW 

Austin Landing 1 

10050 Innovation Drive 

S11ite400 

D\\ytcm, Ohio 4.'i:l42-4Y3•1 

ww,v.1hompsonHine.com 

Phone: 937.443.6600 

Fax: 937.443.6635 

EXHffilT 

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PUBLIC DOCUMENT 

THOMPS~O~N~--------------------------------­ -rflNE 

Enclosures 
PUBLIC DOCUMENT 

VIA EMAIL 

Christine Haaker, Counsel to 

O.W.S, Inc. 

February 28, 2014 

(e): Christine.Haaker@thompsonhine.com 

A Professional Corporation 

WASHINGTON I VIRGINIA I PHOENIX 

11808 WOLF RUN LANE 

CL!FrON, VA 20124 

3210 S. GILBERT ROAD 

SUITE4 

CHANDLER, AZ 85286 

(602) 388-88991 FAX (602) 393-4361 

1050 SEVENTEENTH STREET, N.W. 

SUITE600 

WASHJNGTON, D.C. 20036 

(202) 466-69371 FAX (202) 466-6938 

Lou F. Caputo, Esq. 

602.388.8901 

lcaputo@emord.corn 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Ms. Haaker: 

We understand that you represent O.W.S., Inc. and have agreed to accept service on 

behalfofO.W.S., Inc. Pursuant to the Federal Trade Commission's Rules ofPractice, please 

find enclosed Respondent ECM BioFilms, Inc.'s amended subpoena duces tecum to O.W.S. 

This subpoena requests the production of documents and other materials. Included with the 

subpoena is Schedule A, which describes the instructions and specific requests of Respondent 

and a copy of the Protective Order issued in this matter. 

Please provide all requested documents no later than March 14, 2014. We welcome you 

to contact us with questions. 

Sincerely, 

Peter A. Arhangelsky _______ , 

Lou F. Caputo EXIDBIT 

c 

l:iMORD&AssocJATP.S, P.C. 

WASHIN<)TON, D.C.IVIROINfA I ARIZONA 

(202) 466·6937 /Ffl)( (202) 466-6938 

WWW.l:IMORD.COM 

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PUBLIC DOCUMENT 

SUBPOENA DUCES TECUM 

Provided by the Secretary of the ~eral Trade Commisslotl. anf:l . 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. §·3.34(b)(2010) 

2. FROM 

O.W.S., .Inc. U.NITED.STATES.OFAMERICA . . 

. C/O Counsel, Ms. Christine Haaker FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated boOks, documents (as defined in 

RUI&3.34(b)), 01: langlbte.things. at the date and ume·specified In Item 5, and at the ~ of c~ fisted In Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCJlON 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

·e. SUBJECT a= PROCeEDING 

-4. MATERIAL WIU.. BE PRODUCED TO 

Peter Arhangelsky 

5. DATEANO~MEOFPRODUP110N 

'March 14, 2014, 5:00 PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

7. MA~ TOBE PROQUCEO 

See Attached Schedule A for description of all documents and materials. 

8.. ADM~ISTRAliVE LAW JUDGE 

Chief Administrative law Judge 

D. Michael Chappell 

Federal Trade Commission 

~Shi~n. o;c. 20580 

OAll:S~: 

2/28/14 

APPEt\RANCE 

The clellVery of this subpoena to you by any method 

... prescribed ·by .the Commission's Rules of Practice !s . l,egal.servi~ ~d may sub~ you to· a penalty 

Imposed by laW for failure 1o.comply. 

·M<>liON JQ UMIT OR.QU,.SH 

The Comi'n18sloll's Rules of Pradic8 ~that any 

~n to limit OJ'~~ ~Ia subpoena must ~ly wfth 

Commisslon Rule 3.34(c); 16 C.F.R § 3:34(c). and 'In 

particularmt.ist be filed witt1ln the eartler of tOday$ aft8r 

$8IVkie or1he ~tor~. The crlginal and ten ~·ofthe petition must be filed before Ule A,dm~ve Law..!Udge and with the Secretary ofth& 

~.acaimpanlecl by an affidavit ofset'llce-of 

the doalment.upon counsetlsWd In Item 9, ~upon au . other parli$$ prescribed by. th8 Rulea of PractiCe. 

FTC Form 70-E (llw. 1197) 

9. COUNSaANO PARlY ISSUING SUBPOENA 

Jonathan W. Emord, Peter Arhangelsky, Lou 

. Caputo· 

Emord & Associates, P.C. for Respondent 

ECM BioFilms, Inc. 

This subpoena~ not requite .. approval by OMS under· 

the Paperwork Reduction~ of 1~0. 
PUBLIC DOCUMENT 

SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

O.W.S., INC. 

INSTRUCTIONS 

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. Ifthe information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waivt:u. 
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PUBLIC DOCUMENT 

I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope ofthe duty to search set forth in 

§3.3l(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

J. The Federal Trade Commission's Rules ofPractice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) ofthis section 

authorizes the issuance of subpoenas except in accordance with 

§§3.3l(c)(2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ,4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule ofthe items withheld. For each item withheld, the schedule should state: (a) 

the item's type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients ofthe item; and (c) the specific grounds for 

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claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions ofthe document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies.ofthe following documents (the term "documents" 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refmed data, memoranda, 

graphs, drawings, notes, lab books, advertisements, Jist studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence 1

, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

I. All documents and correspondence concerning2 ECM BioFilms, Inc., 3 Robert 

Sinclair, and/or ECM BioFilms Master BatchPellets 

2. All documents and correspondence concerning any test or report (including any 

and all notes and raw data) performed or written for Gary Plastic Packaging Corporation 4 

1 The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The term "concerning" is intended, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining; or about the documents 

subject to any and all individual requests in this subpoena. 

3 ECM BioFilms Inc. is an American corporation with its principal place of business at 

Victoria Place- Suite 225, 100 South Park Place, Painesville, Ohio 44077, United States. 

4 Gary Plastic Packaging is an American company located at 1340 Viele Avenue, Bronx, 

NY 10474, United States. 

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(GPPC) including, but not limited to, "Study GLH-2: Review of Several Documents, Reports 

and Statements on Biodegradation ofECM MasterBatch Pellets." 

3. All correspondence between O.W.S. and any member, employee, representative, 

or officer of the United States Federal Trade Commission. 

4. All correspondence between O.W.S. and any member, employee, and/or 

representative of the Biodegradable Products Institute ("BPI"). 

5. All documents concerning any test or report (including any and all notes and raw 

data) performed or written related to the biodegradability of plastic products under ASTM 

standards 05511,05526, and D5338 or equivalent standard. 

6. All documents concerning the education, training, experience, and employee 

evaluations of Mr. Bruno de Wilde. 

7. All documents written or authored by Mr. de Wilde concerning plastic products 

claiming to be biodegradable with the use of an additive product, including, but not limited to 

ECM's additive (MasterBatch Pellets). 

8. All documents concerning the education, training, experience, and employee 

evaluations ofMr. Richard Tillinger. 

9. All documents, including tests and reports, written or authored by Mr. Tillinger 

concerning plastic products claiming to be biodegradable with the use of an additive product, 

including, but not limited to ECM's additive (MasterBatch Pellets). 

10. All documents and correspondence concerning any amendments, vote(s), and/or 

"negatives" related to ASTM standards 05511, 05526, and 05338. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

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PUBLIC DOCUMENT 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents 5

, and a brief description of the nature ofthe work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees ofO.W.S. who have knowledge of such 

matters, can authenticate the documents and materials produced, and who can 

testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states: 

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date]. 

[Signature of party executing the declaration] 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

5 "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested" section. 

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Ph: 202-466-6937 

Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM BioFilms. Inc. 

6 

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PUBLIC DOCUMENT 

In the Matter of 

ECM BioFilms, Inc., 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFlCE OF ADMINISTRATIVE LAW JUDGES 

DOCKET NO. 9358 

a corporation, also d/b/a 

Enviroplastics, International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.3l(d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shill issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.31 (d} Pursuant to Commission Rule 3.31 (d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is ,hereby issued. 

ORDERED: 

D. Michai:H C a ell 

Chief Administrative Law Judge 

Date: October 22,2013 

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PUBLIC DOCUMENT 

ATTACHMENT A 

For the purpose of protecting :the interests of the parties and third parties in the 

above-captioned tnatter against improper use ap.d disclosure of confidential information 

submitted of produced in connection with this matter: 

ITIS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defmed. 

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

thereof that contains privileged, competitively sensitive infontlation, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-1ssued 

identification number, passport number, date of birth (other than year), and any sensitive 

health.information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Co!IUliission" sh;dltefer to the Federal Trade Co:rtunission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. · 

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

F edera.J. Trade Coinmission investigation or during the course of this proceeding that is 

entitled to confidentiality uncier the Federal Trade Commission Act, Or any regulation, 

interpretation, or precedent concerning documents in the possession ofthe Commission, 

as well as any information taken :fro:m any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

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

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

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her; or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

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

public domain and that coUri:sel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 ofthis Order. 

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PUBLIC DOCUMENT 

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

containing such nuitetial (in such manner as Will not interfere with the legibility thereof), 

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

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

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

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

information contained in electronic docui:nehts may also be designated as confidential by 

placing the designation "CONFIDENTIAL_:_ FTC Docket No. 9358" or any other 

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

medium oil which the doc'i.lment is produced. Masked or otherWise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

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

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

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

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

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

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

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

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

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

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

who mayhave authored or received the information in question. 

8. Disclosure ofconfidential material to any person described in Paragraph 7 of this 

Order shall be o.nly for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material,- use or disclose confidential material as provided by its Rules of Practice; 

sections 6(fJ and 21 ofthe Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the pubiic record a duplicate copy of 

the paper that does not reveal confidential material. Further. if the protect1on for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

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10,- If counsel plan·s to .introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such D.()tice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transeript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receiv~ a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

. the s~bmitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge.- or appeal any order requiring production of confidential material, 

to s'!lbject itselfto any penalties for non-compliance with.any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the s.ubmitter's efforts to challetige the d1sclosure of confidential material. In 

addition, notQing herein shall limit the applicability of Rule 4.11 (e) of the Commission's 

Rules of Pra.Ctice, 16 CFR 4.11 (e)s to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the titne that any consultant or other person retained to assist counsel in the 

preparation ofthis action concludes participation in the action, such person shall return to 

counsel all copies of-documents or portions thereofdesignated confidential that are in the 

possession of such perso~ together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, thatthe Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter ot further order of the Conimission; continue to be binding after the conclusion 

ofthis proceeding; 

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Smith, Jeremy 

From: 

Sent: 

To: 

Cc: 

Subject: 

Importance: 

Expires: 

Lou, 

Haaker, Christine 

Thursday, March 06, 2014 11:50 AM 

Lou Caputo 

Peter Arhangelsky 

RE: O.W.S. Subpoena Duces Tecum 

High 

Tuesday, September 02, 2014 12:00 AM 

We have major issues with the Subpoena. In many ways, I am hoping inadvertently, you have drastically gone well beyond even the 

scope of the prior subpoena. For example, No. 5 would involve hundreds of customers and thousands of unrelated products, subject to 

confidentiality agreements. I have to tell you, this Subpoena seems to telegraph a c.lear intent to harass and tortiously interfere with 

the business of my client. I understand you are out ofthe office, but we need to discuss. When would be a good time? 

Best, 

Christine 

From: Lou caputo [mailto:Lcaputo@emord.com] 

Sent: Friday, February 28, 2014 7:15 PM 

To: Haaker, Christine 

Cc: Peter Arhangelsky 

Subject: O.W.S. Subpoena Duces Tecum 

Hi Christine, 

As we discussed, please find attached our amended subpoena to O.W.S., Inc. I will be out of the office all of next week, 

however, I will be periodically checking my email. Please let me know of any questions concerning the subpoena and I 

will be happy to discuss. 

Thank you very much, 

Lou 

Lou Caputo I EMORD & ASSOCIATES, P.C.I3210 S. Gilbert Rd., Ste 41 Chandler, AZ 85286 Firm: (602) 388-8901 I 

Facsimile: (602) 393-4361 1 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 

hss been sent to you fn error, please notify the sender and then immadiately riARtroy thA rior.umant. 

EXHffiiT 

D 

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PUBLIC DOCUMENT 

THOMPSON ATlANTA CLEVElAND DAYTON WASHINGTON. D.C. 

---I-II~E~~~--~----C-JN_C_IN-N-An----~----CO--W-M-6U_S ________ N_£W_~-O-RK------------

March 7, 2014 

Via Electronic Mail 

Lou F. Caputo 

3210 S. Silbert Rd., Suite 4 

Chandler, AZ 85286 

RE: In the Matter of ECM BioFi/ms, Inc., Federal Trade Commission Docket No. 9358 

(the "Proceeding") 

Dear Lou: 

As you know, I contacted you on February 27, 2014 in regard to a subpoena purportedly served 

on "Organic Waste Systems, Inc." and that was improperly delivered to 7155 Five Mile Rd., 

Cincinnati, OH 45230. I offered that ifyou intended to serve a subpoena on my client, O.W.S. 

Inc. ("O.W.S."), I would accept service. I asked that if you did intend to serve a similar 

subpoena on O.W.S. that you consider narrowing the Requests. Following your receipt of the 

email, you telephoned me and we discussed why several of the subpoena Requests were 

objectionable. As indicated, my client has no interest in the Proceeding and in all ways intends 

to be cooperative to the extent Requests are reasonable. 

Last Friday evening, February 28, 2014, you sent a revised subpoena to me for O.W.S. via 

electronic mail (the "Subpoena"). While I appreciate your cooperation and willingness to 

discuss the Requests, and that you did make some revisions, you have also expanded the 

Subpoena's scope, making it more broad in many respects. I hope that we can cooperatively 

work to narrow the Subpoena Requests and will do my best to elaborate reasons therefore herein 

in the hope that we can avoid motion practice. 

General Information 

O.W.S. is an independent testing company that serves hundreds of clients and processes 

thousands of tests of materials and products. The vast majority ofO.W.S!s clients require strict 

confidentiality. O.W.S. does not own the testing information, it is the information of the 

customers. Many of these customers are competitors of your client. 

The market for testing the biodegradation of plastic materials and products is very small. 0. W.S. 

has a strong reputation in this market and is trusted by its customers. This strong reputation and 

Christine.Haaker@ThompsonHine.com 937.443.6635 (facsimile) 937.443.6822 (telephone) 

-----------~--------~------ THOMPSON HINE u.r ATTORNEYS AT lAw 

fut._qtin Landing! 

10050 Innovation Drive 

Suite 400 

Dayton, Ohio 45342-4934 

www. 'Thompsonl.iine.com 

Phone; 937.443.6600 

Fax: 937.443.6635 

EXHIBIT 

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the trust placed in O.W.S. by its customers are based on and exist, in large part, because of 

O.W.S.'s strict adherence to the protection of its customers' confidential and proprietary 

business information and data. O.W.S. actively markets its services to customers and potential 

customers by assuring them that the customer owns the data and that their data is protected. In 

fact, O.W.S. has exercised this policy on multiple occasions to protect your client's own data. If 

O.W.S. were compelled to reveal customer information against the customer's will, even under 

the protective order, that disclosure of customers' proprietary and confidential information 

would significantly damage the reputation ofO.W.S. in the marketplace, and would cause 

irreparable harm to and possibly destroy its business with North American customers. This 

cannot be emphasized strongly enough. O.W.S.'s business critically depends on the trust its 

customers place in O.W.S., and that trust will be broken by revealing their information. We ask 

that you consider this information as you review the objections and concerns set forth below. 

Instructions 

We have the following concerns with your "Instructions": 

• C: This Instruction requires that if a document contains a portion that is responsive and a portion 

that is not, the entire document should nonetheless be wholly produced without redaction. We 

could not agree to this. For example, if an email discussed ECM BioFilms, Inc. ("ECM") in one 

paragraph but contained five other paragraphs that had absolutely nothing to do with ECM, we 

would redact the other non-responsive paragraphs, indicating to you such redactions. Will you 

agree to this procedure? 

• D and F: These Instructions require the correlation of documents to each Request. We will 

attempt to comply, however, to the extent documents correlate to repeated Requests, we believe 

that this Instruction would be overly burdensome to a third party. Will you agree with our 

approach? 

• E: This Instruction expressly seeks production of documents to and from attorneys. A Request 

specifically directed to seeking attorney-client privileged documents is in and of itself 

objectionable at the outset and seems directed to invading privilege. Unless a document is 

directly responsive to a Request, is not otherwise objectionable and is being withheld solely for 

privilege, we will not log it on a privilege log. Pursuant to 16 CFR 3.31 ( c )(2), we will not review 

nor log any documents generated in the process of the prior subpoena or this Subpoena. Will you 

agree with our approach? 

• H: This Instruction seeks to deem any objection not raised in O.W.S.'s initial response-this 

letter, for example-waived. O.W.S. hereby expressly reserves the right to make any and all 

timely objections in compliance with the Commission's Rules. 

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• L: This Instruction seeks to require what are essentially answers to interrogatories in regard to 

· documents withheld for privilege. O.W.S. will comply with the requirements of the 

Commission's Rules, no more. 

The Requests 

1. All documents and correspondence concerning ECM BioFilms, Inc., Robert 

Sinclair, and/or ECM BioFilms Master Batch Pellets. 

This Request is very broad and unduly burdensome to even search for. Further, the Request does 

not appear to be limited to the subject matter of the Proceeding, which I understand to relate to 

the question of whether ECM additives and ECM plastics advertised as biodegradable are in fact 

biodegradable. To this end, you should know that O.W.S. has not performed tests for ECM since 

approximately 2000. While a product submitted by an O.W.S. customer for testing could contain 

an ECM additive, O.W.S. may or may not be told this by the customer. O.W.S. conducts 

thousands of tests for hundreds of customers and has no way to reasonably search customer 

records to pull out information regarding whether a customer's product being tested contained an 

ECM additive or related in some way to ECM. 

This Request may also involve confidential and proprietary information ofO.W.S. and of 

O.W.S. customers, many of which are competitors ofyour client, which would have no bearing 

on the Proceeding. O.W.S. would also, in all likelihood, owe strict contractual duties of nondisclosure and confidentiality to such customers, placing O.W.S. in an untenable position of 

being in breach of contract and violating the trust and confidence of its clients. Further, the 

testing information is the customers' property, not O.W.S.'s to disclose. Disclosure could only 

serve to harm O.W.S. and not serve to support any claim or defense in the Proceeding. 

Moreover, some of our customers are attorneys who hire O.W.S. for privileged and confidential 

testing, subject to the work product doctrine. O.W.S. has no right or ability to violate its 

agreement with such customers, whose testing may relate to competitors of your client. Even the 

disclosure of a mention ofECM by such customers would.violate the competitive rights of those 

customers. 

0. W.S. has no problem producing documents in which ECM, Robert Sinclair, and/or ECM 

BioFilms Master Batch Pellets are discussed in non-confidential/protected communications that 

are not customer specific, to the extent they can be readily located. O.W.S. cannot produce 

documents in breach of customer contracts and confidences, or in violation of privileges not held 

by O.W.S., but by the customers. Nor can O.W.S. feasibly contact every such customer to either 

obtain permission to produce under the Protective Order or to allow such customers to intervene. 
,,, 

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To try to even go through all customer documents to determine whether they could be responsive 

at the outset is an insurmountable task. 

You should know that O.W.S. has received documents that suggest that ECM or someone 

advocating for ECM appears to have taken old O.W.S. test reports for ECM and altered them to 

change the conclusions. We will produce these documents assuming this Request is not 

otherwise limited or deleted. 

Will you agree to limit this Request to exclude documents concerning O.W.S. customers other 

than ECM and to limit this Request to documents concerning ECM, Mr. Sinclair and or the 

Master Batch Pellets that are non-customer specific (not confidential) to the extent readily 

located? 

2. All documents and correspondence concerning any test or report (including any and 

all notes and raw data) performed or written for Gary Plastic Packaging 

Corporation (GPPC) including, but not limited to, "Study GLH-2: Review of 

Several Documents, Reports and Statements on Biodegradation of ECM 

MasterBatch Pellets." 

This Request also does not appear to be limited to the subject matter of the Proceeding. Because 

this Request may also involve confidential and proprietary information of GPPC, we have 

contacted GPPC and understand that GPPC has already produced this information to you in this 

Proceeding. Therefore, this Request appears to also be repetitive of information you have 

already directly obtained. O.W.S. would not have anything more than GPPC on this issue. 

Will you agree to withdraw this Request? 

3. All correspondence between O.W.S. and any member, employee, representative, or 

officer ofthe United States Federal Trade Commission. 

This Request also does not appear to be limited to the subject matter of the Proceeding. Because 

this Request may also involve confidential and proprietary information of GPPC, we have 

contacted GPPC and understand that GPPC has already produced this information to you in this 

Proceeding. Therefore, this Request appears to also be repetitive of information you have 

already directly obtained. O.W.S. would not have anything more than GPPC on this issue .. 

,, 

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Will you agree to withdraw this Request? 

4. All correspondence between O.W.S. and any member, employee, and/or 

representative of the Biodegradable Products lnstitute ("BPI"). 

This is a new Request that was not even alluded to in the prior subpoena. 

This Request is very broad and unduly burdensome to even search for. Further, the Request does 

not appear to be limited to the subject matter of the Proceeding. This Request may also involve 

confidential and proprietary information ofO.W.S. and of customers, many ofwhich are 

competitors of your client, which would have no bearing on the Proceeding. Further, the testing 

information is the customers' property, not O.W.S.'s to disclose. O.W.S. would also, in all 

likelihood, owe strict contractual duties of non-disclosure and confidentiality to such customers, 

placing 0. W.S. in an untenable position of being in breach of contract and violating the trust and 

confidence ofits clients. This could only serve to harm O.W.S. and not serve to support any 

claim or defense in the Proceeding. Moreover, some O.W.S. customers are attorneys who hire 

O.W.S. for privileged and confidential testing, subject to the work product doctrine. O.W.S. has 

no right or ability to violate its agreement with such customers, whose testing may relate to 

competitors of your client. 

Some background is in order. O.W.S. deals with the BPI on three separate levels. On one level, 

O.W.S. deals with the BPI on behalfofO.W.S. customers in regard to such customers' Request 

for certification of their own products. The BPI administers a certification mark (logo) for 

compostable products. Many O.W.S. customers seek this certification. Often, all or part ofthe 

testing the customer submits for certification has been performed by O.W.S. Communications 

with the BPI on behalf of 0. W.S. customers involve confidential and proprietary information 

belonging to the customers, many of whom are direct competitors of your client. This 

confidential and proprietary information can include, but is not limited to, material or product 

formulations, product construction, manufacturing techniques, testing results, and marketing 

plans. These discussions relate to the customers' own products and are unrelated to ECM and 

unrelated to the Proceeding in any way. 

On a second level, 0. W.S. participates, along with one representative of the BPI, on 

subcommittee D20.96 of the American Society for Testing and Materials ("ASTM"). Mr. 

Sinclair also participates on this subcommittee and is fully aware ofthese activities and the 

business of the subcommittee, and has full access to communications related thereto. 

I. 

;. 

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Finally, on a third level, some O.W.S. customers are members ofthe BPI. The BPI is, according 

to their website (www.bpiworld.org), a not-for-profit association of individuals and groups from 

government, industry and academia. Their stated purpose is to "educate manufacturers, 

legislators and consumers about the importance of scientifically based standards for compostable 

materials which biodegrade in large composting facilities." The BPI's website currently lists 147 

members. O.W.S is not a member ofthe BPI, but, as stated, some ofO.W.S.'s customers are 

members. Thousands of correspondence documents exist between O.W.S. and these customers 

in the normal course ofO.W.S.'s business with such customers in their own commercial 

capacities, not in their capacity as members of BPI. This correspondence has nothing 

whatsoever to do with your client or the Proceeding. The membership of those customers in the 

BPI is merely coincidental to the existence of the documents. These customers are competitors 

ofECM and the documents contain confidential or proprietary information including, but not be 

limited to, material or products formulations, product construction, manufacturing techniques, 

testing results, and marketiJ?g plans. 

O.W.S. will not search for or produce documents merely because the source or recipient of the 

document may be a member of the BPI. 0. W.S., however, will search for and produce 

responsive correspondence with employees of BPI to the extent the documents pertain to ECM. 

Will you agree to this limitation? 

5. All documents concerning any test or report (including any and all notes and raw 

data) performed or written related to the biodegradability of plastic products under 

ASTM standards D5511, D5526, and D5338 or equivalent standard. · 

This Request is very broad and unduly burdensome to even search for, literally encompassing 

approximately 98% ofO.W.S.'s business. Further, the Request does not appear to be limited to 

the subject matter of the Proceeding. This Request involves confidential and proprietary 

communications with customers, many of whom are competitors of your client, which would 

have no bearing on the Proceeding. O.W.S. also owes, in most cases, strict contractual duties of 

non-disclosure and confidentiality to such customers, placing O.W.S. in an untenable position of 

being in breach of contract and violating the trust and confidence of its clients. Further, the 

testing information is the customers' property, not O.W.S.'s to disclose. Disclosure could only 

serve to harm O.W.S. and not serve to support any claim or defense in the Proceeding. 

Moreover, some O.W.S. customers are attorneys who hire O.W.S. for privileged and confidential 

L~sliug, subj~:~.:t tu tht: work product uu~.:tliue. O.W.S. has no right or ability to violate its 

agreement with such customers, whose testing may relate to competitors of your client. 
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Production of documents in response to this Request would cause irreparable harm to the 

reputation ofO.W.S. and tortiously interfere with the relationship between O.W.S. and its 

customers. 

Again, some background information is in order. This Request literally seeks information 

related to hundreds of customers and thousands oftests on products wholly unrelated in any way 

to your client. As you know, 16 CPR 3.31 ( c )(1) allows discovery only when it is "reasonably 

expected to yield information relevant to the allegations of the complaint, to the proposed relief, 

or to the defenses of any respondent." The Proceeding relates only to ECM' s products and 

ECM's marketing of those products. The Proceeding does not deal with any other company's 

product. Furthermore, nowhere in Answer and Affirmative Defenses of Respondent EEM 

Bio.films, Inc.,; Respondent's Answers to Complaint Counsel's First Request for Admissions; or 

Respondent's Supplemental Answers to Complaint Counsel's First Request for Admissions ECM 

Bio.films, Inc.; did ECM raise any issue regarding other companies' products. 

Producing documents in response to this Request would cause O.W.S. to violate customer 

confidentiality, proprietary, and non-disclosure agreements. Given that in most cases, these 

O.W.S. customers are direct competitors ofECM, this Request appears to be directed at 

obtaining a competitive advantage for ECM, causing harm to O.W.S. customers and, therefore, 

harm to the relationships between O.W.S. and its customers. 

O.W.S. will provide any responsive tests for ECM. Otherwise, ECM must narrow this Request 

and identify what it is actually looking for. If there is testing for a particular product/customer, 

ECM should go directly to that customer for such information. Will you agree to eliminate or 

rephrase this Request? 

6. All documents concerning the education, training, experience, and employee 

evaluations of Mr. Bruno de Wilde [sic). 

Neither Mr. Bruno De Wilde nor O.W.S. is a party to the Proceeding. Neither are on trial. This 

Request for information regarding his education, training, experience and employee evaluations 

is not in any way related to the scope of the Proceeding and will not lead to any information 

relevant to any claim or defense in the Proceeding. Moreover, this Request clearly seeks 

information, at least in part, that would be confidential to Mr. De Wilde. We cannot determine 

any valid basis for the information Requested. 

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However, to the extent O.W.S. has a biography or a CV for Mr. De Wilde, O.W.S. will produce 

it. Will you agree to so limit the Request? 

7. All documents written or authored by Mr. de Wilde [sic] concerning plastic 

products claiming to be biodegradable with the use of an additive product, 

including, but not limited to ECM's additive (MasterBatch Pellets). 

This Request is very broad and unduly burdensome to even search for. The words "written or 

authored by" are incredibly broad and could include every email, every test, and every comment 

Mr. De Wilde ever made in the context ofO.W.S. Further, the Request is not limited to the 

subject matter of the Proceeding. This Request may also involve confidential and proprietary 

communications with customers, some ofwhich are competitors of your client, which would 

have no bearing on the Proceeding. O.W.S. would also, in all likelihood, owe strict contractual 

duties of non-disclosure and confidentiality to such customers, placing O.W.S. in an untenable 

position of being in breach of contract and violating the trust and confidence of its clients. This 

could only serve to harm O.W.S. and not serve to support any claim or defense in the 

Proceeding. Moreover, some of our customers are attorneys who hire O.W.S. for privileged and 

confidential testing, subject to the work product doctrine. O.W.S. has no right or ability to 

violate its agreement with such customers, whose testing may relate to competitors of your 

client. Production of documents in response to this Request would cause irreparable harm to the 

reputation ofO.W.S. and tortiously interfere with the relationship between O.W.S. and its 

customers. 

As you are aware, 16 CFR 3.31 (c)( 1) allows discovery only when it is "reasonably expected to . 

yield information relevant to the allegations of the complaint, to the proposed relief, or to the 

defenses of any respondent." The Proceeding relates only to ECM's products and ECM's 

marketing of those products. The Proceeding does not deal with any other company's product. 

Furthermore, nowhere in Answer and Affirmative Defonses of Respondent EEM Biofilms, Inc.; 

Respondent's Answers to Complaint Counsel's First Request for Admissions; or Respondent's 

Supplemental Answers to Complaint Counsel's First Request for Admissions ECM Biofilms, Inc.; 

did ECM raise any issue regarding other companies' products. 

Producing documents in response to this Request would cause O.W.S. to violate customer 

confidentiality, proprietary, and non-disclosure agreements. Given that in most cases, these 

O.W.S. customers are direct competitors ofECM, this Request appears to be directed at 

obtaining a competitive advantage for ECM, causing harm to O.W.S. customers and, therefore, 

harm to the relationships between O.W.S. its customers. 
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If you are seeking presentations or published materials ofMr. De Wilde, to the extent they relate 

to ECM, 0. W.S. will produce them. Otherwise, ECM must narrow this Request and identify 

what it is actually looking for. Will you agree to eliminate or rephrase this Request? 

8. All documents concerning the education, training, experience, and employee 

evaluations of Mr. Richard Tillinger. 

Neither Mr. Tillinger nor O.W.S. is a party to the Proceeding. Neither are on trial. This Request 

for information regarding his education, training, experience and employee evaluations is not in 

any way related to the scope of the Proceeding and will not lead to any information relevant to 

any claim or defense in the Proceeding. Moreover, this Request clearly seeks information, at 

least in part, that would be confidential to Mr. Tillinger. We cannot determine any valid basis 

for the information Requested. 

However, to the extent O.W.S. has a biography or a CV for Mr. Tillinger, O.W.S. will produce 

it. Will you agree to so limit the Request? 

9. All documents, including tests and reports, written or authored by Mr. Tillinger 

concerning plastic products claiming to be biodegradable with the use of an additive 

product, including, but not limited to ECM's additive (Master Batch PeiJets). 

This Request is very broad and unduly burdensome to even search for. The words ''written or 

authored by" are incredibly broad and could include every email, every test, and every comment 

Mr. Tillinger ever made in the context ofO.W.S. Further, the Request is not limited to the 

subject matter of the Proceeding. This Request may also involve confidential and proprietary 

communications with customers, some of which are competitors of your client, which would 

have no bearing on the Proceeding. O.W.S. would also, in all likelihood, owe strict contractual 

duties of non-disclosure and confidentiality to such customers, placing O.W.S. in an untenable 

position of being in breach of contract and violating the trust and confidence of its clients. This 

could only serve to harm O.W.S. and not serve to support any claim or defense in the 

Proceeding. Moreover, some of our customers are attorneys who hire O.W.S. for privileged and 

confidential testing, subject to the work product doctrine. O.W.S. has no right or ability to 

violate its agreement with such customers, whose testing may relate to competitors of your 

client. Production of documents in response to this Request would cause irreparable harm to the 

reputation ofO.W.S. and tortiously interfere with the relationship between O.W.S. and its 

customers. 

. ..

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THOMPS.O~~N:.___ ________________ _ -HINEMarch 7, 2014 

Page -10-

Producing documents in response to this Request would cause O.W.S. to violate customer 

confidentiality, proprietary, and non-disclosure agreements. Given that in most cases, these 

O.W.S. customers are direct competitors ofECM, this Request appears to be directed at 

obtaining a competitive advantage for ECM, causing harm to O.W.S. customers and, therefore, 

harm to the relationships between 0. W.S. its customers. 

If you are seeking presentations or published materials of Mr. Tillinger, to the extent they relate 

to ECM, O.W.S. will produce them. Otherwise, ECM must narrow this Request and identify 

what it is actually looking for. Will you agree to eliminate or rephrase this Request? 

10. All documents and correspondence concerning any amendments, vote(s), and/or 

"negatives" related to ASTM standards D5511, D5526, and D5338. 

This Request is very broad and unduly burdensome. Further, the Request is not limited to the 

subject matter ofthe Proceeding. Mr. Sinclair himself is involved in these amendments, votes 

and/or "negatives." There is no reason that O.W.S. should be burdened with providing 

information to ECM well within its reach, particularly given that Mr. Sinclair is on the ASTM 

subcommittee and would have received similar information. 

Will you agree to eliminate this Request? 

Protective Order 

Because a number of our issues with the Requests relate to the confidential and proprietary 

information ofO.W.S. and/or its customers, we would like to address the inadequacy of the 

Protective Order attached to the Subpoena. As explained, many of the documents Requested by 

the Subpoena contain sensitive and confidential information ofO.W.S. customers, many of 

whom are direct competitors ofECM, such as material or products formulations, product 

construction, manufacturing techniques, testing results, and marketing plans. O.W.S. customers 

and O.W.S. would be harmed by the release ofthis information. The Protective Order does not 

consider the specific nature ofO.W.S.'s business, the crucial relationships between O.W.S. and 

its customers and the trust on which those relationships are built, or how those relationships 

would be harmed by releasing customer information, even under the standard Protective Order. 

In any event, the Protective Order would not serve to excuse the complete lack of relevance of 

the Requested documents to the Proceeding. 

f.= 

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March 7, 2014 

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Expenses 

Even if the scope of the Subpoena Requests are narrowed considerably, O.W.S. will still incur 

significant costs in complying with the Subpoena. In addition to the labor involved in searching, 

compiling, and marking documents, O.W.S. has already and will continue to incur significant 

legal costs as a direct result of the Subpoena. 

While a subpoenaed party may be expected to absorb some reasonable costs, unreasonable 

costs, particularly in relation to the size of the company, are to be borne by the party and the 

party's counsel issuing the subpoena according to the Commission. O.W.S. is a relatively 

small company, and the effort to comply will pull people away from the conduct of business 

for its customers. This will delay the performance of testing and perhaps cause customers 

to go elsewhere for their testing, thereby significantly harming revenues from that testing. 

Furthermore, legal fees alone to respond to this Subpoena will amount to a significant 

percentage oftotal annual revenues for O.W.S. In addition, there will be the cost ofthe 

manpower required to search company records for documents relevant to the Subpoena. 

These costs of legal fees, time and expense of personnel, and potential lost business might 

possibly reduce the company to losing money in 2014. O.W.S., if forced to respond to any 

overly burdensome Requests, will seek payment of expenses to do so. 

Conclusion 

O.W.S. does not sell products iri ECM's industry. O.W.S. has no interest in the Proceeding 

and will not be affected by the outcome of the Proceeding, regardless ofthat outcome. To 

the extent that ECM seeks information regarding ECM's customers' products that utilize 

ECM additives and testing thereof, ECM should obtain that information directly from 

ECM's customers. Moreover, O.W.S. cannot be made into some involuntary form of expert 

for ECM. From the scope of the Subpoena Requests, the only conclusions we can come to, 

as I said in my email yesterday, are that ECM's intent is to harass, burden and harm O.W.S. 

for some reason in this process and/or achieve competitive information and thereby 

competitive advantage. For the reasons set forth herein, we ask that you agree to withdraw 

and/or modify the Requests as stated. 

I sent an email to you yesterday asking to discuss these issues and have not heard back from 

you. Given that the deadline for filing a Motion is fast approaching, can you please contact 

me as soon as possible? If you can discuss this weekend, please send me an email and we 

can arrange a time. 

I 

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Sincerely, 

Christine Haaker 

cc: Jonathan W. Emord (via Electronic Mail) 

Peter A. Arhangelski (via Electronic Mail) 
PUBLIC DOCUMENT 

Smith, Jeremy 

From: 

Sent 

To: 

Cc: 

Subject: 

Importance: 

Expires: 

Counsel, 

Haaker, Christine 

Monday, March 10, 2014 5:22 PM 

lcaputo@emord.com 

jemord@emord.com; parhangelsky@emord.com; Smith, Jeremy 

RE: In the Matter of ECM BioFilms, Inc. 

High 

Saturday, September 06, 2014 12:00 AM 

Can you please respond to my email and Jetter from Friday? 

Thank you. 

Christine 

Christine M. Haaker I Partner 1 Thompson Hine LLP 

10050 Innovation Drive, Suite 400 1 Dayton, Ohio 45342 

Office: 937.443.6822 1 Mobile: 937.609.8418 

Fax: 937.443.66351 Email: Christine.Haaker@ThompsonHine.com 

Web: http://www.ThompsonHine.com 

Consistently ranked a top law firm in the country for client service for 10 consecutive years in BTl's survey of 

general counsel and C-level executives. 

Atlanta I Cincinnati I Cleveland I Columbus I Dayton 1 New York 1 Washington, D.C. 

THOMPSON -H!NE ... 

From: McPherson, Mari 

Sent: Friday, March 07, 2014 5:23PM 

To: lcaputo@emord.com 

Cc: jemord@emord.com; parhangelsky@emord.com; Haaker, Christine 

Subject: In the Matter of ECM BioFilms, Inc. 

Please see the attached from Christine Haaker. 

Mari McPherson, Secretary 1 Thompson Hine LLP 

Austin Landing I 

Suite 400 

10050 Innovation Drive 

1 

EXHIBIT 

F 
PUBLIC DOCUMENT 

Dayton, Ohio 45342-4934 

Office: 937.331.60991 Fax: 937.443.6910 

THOMPSON 

-HINE-- ................. Visit our new website at www.ThompsonHine.com. 

2 
PUBLIC DOCUMENT 

Smith, Jeremy 

From: Haaker, Christine 

Sent: Monday, March 10, 2014 6:47 PM 

To: Lou Caputo r 

Cc: Peter Arhangelsky; Smith, Jeremy 

Subject: RE: Docket No. 9358, Third-Party Subponea To O.W.S. 

Expires: Saturday, September 06, 2014 12:00 AM 

Lou, 

Thank you for your response. 1 have not reviewed it in full yet but will. I would like to speak on this in the morning if you are 

available? Pl.ease give me a time. I thought we bad a productive call the last time we spoke and perhaps we will be able to work out 

our issues. The most important issue for my client is that its business cannot be banned in this process. Divulging its customers' 

testing infonnation will result in loss ofbusiness. O.W.S. is fmnly convinced of this, therefore production of its customers' 

infonnation is out of the question. If there are specific customers that I can get to quickly with requests that they consent to 

disclosure, that may change things. Tite timing here is an issue with our Motion having to be filed by Wednesday. Also, you mention 

3/24 below. Are you expecting production 3/24 or 3/14? 

I look forward to speaking with you in the morning. 

Best, 

Christine 

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, March 10, 2014 6:39PM 

To: Haaker, Christine 

Cc: Peter Arhangelsky 

Subject: Docket No. 9358, Third-Party Subponea To O.W.S. 

Hi Christine, 

EXIDBIT 

G 

Thank you for your letter. We appreciate your comments concerning the OWS subpoena. We respond as follows. 

The FfC has challenged whether certain ASTM standards, particularly D5511 or 05526, are viable methods for 

demonstrating real-world biodegradability in plastics. The FrC's Complaint alone has engendered an exceptionally 

broad scope of what may be considered relevant topics and information. The FTC has used OWS documents 

(commissioned by third parties) against ECM in this proceeding. OWS has apparently prepared (or assisted in the 

preparation of) promotional materials designed to discredit or challenge ECM's marketing claims. The information 

sought in ECM's subpoena of OWS is calculated to lead to the adduction of relevant evidence in this case and, as such, 

ECM has a right to that information. 

You make several general points in your letter. You state that searching for information will be overly burdensome to 

O.W.S. You explain that certain responsive materials are confidential. You reference documents that may be altered 

and seemingly ascribe malicious and fraudulent intent onto ECM and/or any representative or advocate without 

specificity or examples of proof. We are very concerned with those allegations that lack any foundation or explanation, 

and ECM disputes to the fullest extent each such statement or suggestion. You further allege that ECM seeks a 

competitive advantage through its subpoena schedule. We find this allegation highly dubious considering that it 

presupposes that ECM somehow wanted, Invited, and/or planned for the federal government to launch an unparalleled 

attack on ECM. ECM is the respondent in this action, not a civil plaintiff. The information it requests in the subpoena is 

relevant to its defense against FfC allegations. ECM therefore has a right to that information under 16 C.F.R. 3.31(c) and 

1 
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3.34, and will promptly seek an order compelling your response and, if necessary, for sanctions unless the information 

we seek is supplied in accordance with the subpoena. 

In light of your concerns about scope and burden, we propose the following changes to provide relief without 

compromising the provision of information needed in ECM's defense: 

Instructions: 

C: This instruction stands. 

0: To expedite disclosure, O.W.S. need not list which documents are responsive to a certain request. 

E: We do not seek documents protected by the attorney-client privilege. 

Request No.1: This request stands. 

Request No.2: This request is eliminated. 

Request No. 3: This request stands. 

Request No.4: This request stands, however, the temporal limitation is reduced to documents that were created on or 

after January 1, 2010. FTC agents have spoken directly with BPI members about material issues present in this 

case. Among other reasons, this request is relevant to investigating the relationship and association between O.W.S. 

and the BPI as well as investigating bias. 

Request No. 5: This Request is rephrased as follows: 

"Since January 1, 2010, all documents concerning any test or report (including any notes and raw data} performed or 

written to the biodegradability of plastic products under ASTM standards 05511 and 05526 for ECM and/or a plastic 

product containing. the ECM additive." 

Request No. 6: This request stands. 

Request No.7: This request is eliminated. 

Request No. 8: This request stands. 

Request No. 9: This request is eliminated. 

Request No. 10: This request is rephrased as follows: 

"Since January 1, 2010, all documents and correspondence concerning any amendments, vote(s); and/or 'negatives' 

related to ASTM standard 05511 and 05526." 

We understand that O.W.S. has concerns about confidentiality. The FTC's Rules contemplate disclosure by third-parties 

of information that is considered confidential, and the Rules and the AU's Protective Order also provides mechanisms 

for protecting sensitive material if material disclosed is confidential. We have sent you a copy of the protective order; 

and I include another copy with this email for convenience. Please follow all requirements and directions of the AU in 

his Protective Order, which ECM will abide by to the fullest extent. 

I welcome discussing this matter further but full production must be received on or before March 24, 2014. Please let 

me know of a convenient time for us to speak by phone. 

2 

1 •. 
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Sincerely, 

Lou 

Lou Caputo 1 EMORD & AssociATES, P.C.I3210 S. Gilbert Rd., Ste 41 Chandler, AZ 85286 Firm: (602) 388-8901 I 

Facsimile: (602) 393-4361 1 www.emord.com 

~: 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. 

3 
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Smith, Jeremy 

From: 

Sent: 

To: 

Lou Caputo < LCaputo@emord.com> 

Monday, March 10, 2014 6:53 PM 

Haaker, Christine 

Cc: Peter Arhangelsky; Smith, Jeremy 

Subject: RE: Docket No. 9358, Third-Party Subponea To O.W.S. 

Hi Christine, 

1 am happy to speak tomorrow any time after 12:00 PM EST, just let me know a time that works best for you. As to the 

timing of production, we are offering to extend the due date to March 24 to give O.W.S. additional time to respond. 

Thanks, 

Lou 

Lou Caputo I EMORD & AssOCIATES, P.C.j3210 S. Gilbert Rd., Ste 41 Chandler, AZ 85286 Firm: (602) 388-8901 I 

Facsimile: (602) 393-43611 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: Haaker, Christine [mailto:Christine.Haaker@thompsonhine.com] 

Sent: Monday, March 10, 2014 3:47 PM 

To: Lou Caputo 

Cc: Peter Arhangelsky; Smith, Jeremy 

Subject: RE: Docket No. 9358, Third-Party Subponea To O.W.S. 

Lou, 

Thank you for your response. I have not reviewed it in full yet but will. I would like to speak on this in the morning if you are 

available? Please give me a time. I thought we had a productive call the last time we spoke and perhaps we will be able to work out 

our issues. The most important issue for my client is that its business cannot be harmed in this process. Divulging its customers' 

testing information will result in loss ofbusiness. O.W.S. is firmly convinced ofthis, therefore production of its customers' 

information is out of the question. Ifthere are specific customers that I can get to quickly with requests that they consent to 

disclosure, that may change things. The timing here is an issue with our Motion having to be filed by Wednesday. Also, you mention 

3/24 below. Are you expecting production 3/24 or 3/14? 

I look forward to speaking with you in the morning. 

Best, 

Christine 

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, March 10, 2014 6:39PM 

To: Haaker, Christine 

Cc: Peler Arhangelsky 

Subject: Docket No. 9358, Third-Party Subponea To O.W.S. 

1 

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PUBLIC DOCUMENT 

Hi Christine, 

Thank you for your letter. We appreciate your comments concerning the OWS subpoena. We respond as follows. 

The FTC has challenged whether certain ASTM standards, particularly 05511 or 05526, are viable methods for 

demonstrating real-world biodegradability in plastics. The FTC's Complaint alone has engendered an exceptionally 

broad scope of what may be considered relevant topics and information. The FTC has used OWS documents 

(commissioned by third parties) against ECM in this proceeding. OWS has apparently prepared (or assisted in the 

preparation of) promotional materials designed to discredit or challenge ECM's marketing claims. The information 

sought in ECM's subpoena of OWS is calculated to lead to the adduction of relevant evidence in this case and, as such, 

ECM has a right to that information. 

You make several general points in your letter. You state that searching for information will be overly burdensome to 

O.W.S. You explain that certain responsive materials are confidential. You reference documents that may be altered 

and seemingly ascribe malicious and fraudulent intent onto ECM and/or any representative or advocate without 

specificity or examples of proof. We are very concerned with those allegations that lack any foundation or explanation, 

and ECM disputes to the fullest extent each such statement or suggestion. You further allege that ECM seeks a 

competitive advantage through its subpoena schedule. We find this allegation highly dubious considering that it 

presupposes that ECM somehow wanted, invited, and/or planned for the federal government to launch an unparalleled 

attack on ECM. ECM is the respondent in this action, not a civil plaintiff. The information it requests in the subpoena is 

relevant to its defense against FTC allegations. ECM therefore has a right to that information under 16 C.F.R. 3.31(c) and 

3.34, and will promptly seek an order compelling your response and, if necessary, for sanctions unless the information 

we seek is supplied in accordance with the subpoena. 

In light of your concerns about scope and burden, we propose the following changes to provide relief without 

compromising the provision of information needed in ECM's defense: 

Instructions: 

C: This instruction stands. 

D: To expedite disclosure, O.W.S. need not list which documents are responsive to a certain request. 

E: We do not seek documents protected by the attorney-client privilege. 

Request No.1: This request stands. 

Request No.2: This request is eliminated. 

Request No. 3: This request stands. 

Request No.4: This request stands, however, the temporal limitation is reduced to documents that were created on or 

after January 1, 2010. FTC agents have spoken directly with BPI members about material issues present in this 

case. Among other reasons, this request is relevant to investigating the relationship and association between O.W.S. 

and the BPI as well as investigating bias._ 

Request No. 5: This Request is rephrased as follows: 

"Since January 1, 2010, all documents concerning any test or report (including any notes and raw data) performed or 

written to the biodegradability of plastic products under ASTM standards 05511 and 05526 for ECM and/or a plastic 

product containing the ECM additive." 

2 

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PUBLIC DOCUMENT 

Request No. 6: This request stands. 

Request No. 7: This request is eliminated. 

Request No. 8: This request stands. 

Request No. 9: This request is eliminated. 

Req~est No.lO:This request is rephrased as follows: 

"Since January 1, 2010, all documents and correspondence concerning any amendments, vote(s); and/or 'negatives' 

related to ASTM standard 05511 and 05526." 

We understand that O.W.S. has concerns about confidentiality. The FTC's Rules contemplate disclosure by third-parties 

of information that is considered confidential, and the Rules and the AU's Protective Order also provides mechanisms 

for protecting sensitive material if material disclosed is confidential. We have sent you a copy of the protective order; 

and I include another copy with this email for convenience. Please follow all requirements and directions of the AU in 

his Protective Order, which ECM will abide by to the fullest extent. 

I welcome discussing this matter further but full production must be received on or before March 24, 2014. Please let 

me know of a convenient time for us to speak by phone. 

Sincerely, 

Lou 

Lou Caputo 1 EMORD & AssociATES, P.C.I3210 S. Gilbert Rd., Ste 41 Chandler, AZ 85286 Firm: (602) 388-8901 1 

Facsimile: (602) 393-4361 1 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 notity the sender and then immediately destroy the document. -

3 

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