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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________)

In the Matter of )

)

ECM BioFilms, Inc., ) Docket No. 9358

a corporation, also d/b/a )

Enviroplastics International ) PUBLIC )

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENT’S MOTION FOR 

IN CAMERA TREATMENT OF PROPOSED TRIAL EXHIBITS

Respondent ECM Biofilms, Inc.’s (“Respondent’s”) Motion for in camera treatment is 

both substantively and procedurally defective. The motion fails procedurally—and should be 

denied outright—because Respondent failed to meet and confer with respect to any of the thirtyseven exhibits it seeks to hide from public view. The meet and confer process is critical with 

respect to a motion like this one, where the parties likely could have compromised rather than 

litigated,1 and where the failure to attempt compromise unnecessarily burdens the Court.2 

The motion fails substantively for three reasons. First, Respondent improperly attempts 

to assert the alleged confidentiality interests of third parties that have not sought relief. Second, 

with the exception of one document for which Respondent’s supporting declaration provides 

some analysis, see Ex. A ¶ 8, Respondent’s claims that public disclosure will cause “serious 

injury” are conclusory and insufficient to satisfy Respondent’s substantial burden. Third, even if 

a document contains information requiring in camera treatment, the proper relief is to redact the 

confidential portions so the public will have access to all non-confidential information. 

 1 Among other things, Complaint Counsel would have followed the guidance the Court 

already provided the parties regarding confidentiality in its January 14, 2014 order, and the 

Court’s April 24, 2014 Order. Complaint Counsel does not object to any information that falls 

within the ambit of these orders receiving in camera treatment. 

2 Complaint Counsel expects that, collectively, both parties will seek to offer over 1,500 

exhibits. If ECM will not meet and confer with us, the pretrial process is likely to be extremely 

difficult. 

07 15 2014
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BACKGROUND

On July 8, Respondent filed a motion seeking in camera treatment for thirty-seven 

documents. The motion does not contain the required meet and confer certification. See 

Scheduling Order ¶ 4. Respondent did not attempt to meet and confer with Complaint Counsel. 

Respondent’s motion attaches a declaration from its CEO alleging serious injury, see Motion, 

Ex. A, but the declaration includes analysis with respect to only one document, see Motion, Ex. 

B. Significantly, as discussed below, the declaration does not explain why allegedly confidential 

documents cannot be redacted, see Motion, Ex. A, and the declaration often appears to assert the 

alleged interests of third parties, see id. at 5 (“CCX-568. This potential exhibit contains 

information from FP International discussing FP International’s customers and their orders of 

products manufactured with ECM additive. ECM requests that this exhibit remain confidential 

until 8/1/2017.”) (emphasis added).3

LEGAL STANDARD

It is Respondent’s “heavy” burden to prove that the information is a trade secret or 

otherwise confidential—the public interest in open proceedings is presumed. Miller v. Indiana 

Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (characterizing the burden as “heavy” and emphasizing 

that the “strong presumption of openness does not permit the routine closing of judicial records 

to the public”); see also United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) 

(assigning the burden to “[t]he party seeking to overcome the presumption of public access”). 

Respondent must “make a clear showing that the information concerned is sufficiently secret and 

sufficiently material to their business that disclosure would result in serious completive injury.” 

In re General Foods Corp., 95 F.T.C. 352, 1980 FTC LEXIS 99, at *10 (Mar. 10, 1980).

 3 Notably, this document (CCX-568) is an email exchange between FP International 

(“FP”) and ECM. The document was used at FP’s deposition. Upon receiving notice from 

Complaint Counsel that we intended to use materials designated confidential, FP contacted us 

through counsel. Following discussion, FP indicated that it would not seek in camera treatment 

of its deposition and the exhibits thereto. 
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ARGUMENT

I. RESPONDENT FAILED TO MEET AND CONFER WITH COMPLAINT 

COUNSEL. 

The Court’s Scheduling Order applies the meet and confer requirement to all motions 

(other than motions to dismiss or motions for summary decision). See Order ¶ 4 (Nov. 21, 

2013). Respondent’s motion does not include a meet and confer statement because Respondent 

did not meet and confer, and the Scheduling Order makes plain that motions that “fail to include 

such a separate [meet and confer] statement may be denied on that ground.” Id. Significantly, in 

the context of a motion seeking in camera relief for thirty-seven documents, the meet and confer 

requirement is especially important. Many documents raise unique issues that are not always 

readily apparent,4 and the most efficient approach to address pretrial issues like this one is for the 

parties to sit down (perhaps telephonically) and proceed document-by-document. Instead, 

Respondent asks the Court to do the parties’ job. Because this is inefficient and unnecessary, 

Respondent’s motion should be denied. 

II. RESPONDENT HAS NOT MET ITS SUBTANTIAL BURDEN.

A. Respondent Cannot Assert Third Parties’ Alleged Confidentiality Interests. 

“A party must show that it has standing to assert a claim of confidentiality or privilege 

belonging to a third party,” Krumwiede v. Brighton Assocs., L.L.C., No. 05-C-3003, 2006 WL 

2644952, *3 (N.D. Ill. Sept. 12, 2006). Respondent, however, neither made nor attempted to 

make such a showing. As discussed above, Respondent frequently attempts to assert third 

parties’ alleged confidentiality interests. See Motion, Ex. A. To provide an additional example, 

Respondent seeks in camera treatment for RX-84, see id. at ¶ 9(a), which is a single email from 

another company (3M) to ECM. The email contains 3M’s response to Respondent’s position 

regarding trade secrets (as opposed to trade secrets themselves). Indeed, 3M does not even 

explain what Respondent’s position is. The entire email is inappropriate for in camera 

treatment—but if anyone has a confidentiality interest in this correspondence, it is 3M, not 

 4 For instance, some documents appear in more than one place on the various exhibit 

lists. Others contain information that has been disclosed elsewhere. Respondent should have at 

least attempted to narrow the issues before seeking relief. 
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Respondent. In short, Respondent has not established any basis to assert third parties’ alleged 

confidentiality interests. See, e.g., Burton Mech. Contractors v. Foreman, 148 F.R.D. 230, 234 

(N.D.Ind.1992) (“[T]here is no indication that [the challenging party] has standing in this action 

to assert the rights of [the discovery-producing third parties] with respect to the protection of 

their proprietary or confidential business information.”).

B. Respondent’s Conclusory Declaration Fails To Satisfy Its Burden. 

“[I]t is axiomatic that nebulous and conclusory allegations of confidentiality and business 

harm are insufficient to carry the movant’s burden.” Wall Indus., Inc. v. United States, 5 Cl. Ct. 

485, 487 (1984) (citations omitted); see also Beastie Boys v. Monster Energy Co., 983 F.Supp.2d 

354, 368 (S.D.N.Y. 2014) (“The Court will not accept conclusory claims of the need for 

confidentiality[.]”). Respondent’s declaration simply reasons that the biodegradable polymers 

industry is highly competitive, and therefore disclosure of the thirty-seven identified documents 

allegedly would cause competitive injury. See Motion, Ex. A ¶¶ 7-9. With the exception of one 

document that Respondent places in context, see id. ¶ 8, the declaration then merely provides one 

conclusory sentence regarding each document, see id. ¶ 9. This comes nowhere close to 

satisfying the “heavy burden” Respondent must satisfy to keep trial exhibits from public view. 

Accordingly, Respondent’s motion should be denied.

C. Any Documents That Contain Confidential Information Should Be Redacted 

Where Possible. 

Finally, Respondent has not established that documents containing alleged trade secrets 

could not be redacted, thereby enabling the maximum public disclosure. Indeed, it is sometimes 

the case that a document contains both an alleged trade secret (for instance, a customer name, or 

pricing information) that has nothing to do with this case, along with other communications 

relevant to the issues the Court will decide. In such instances, it would best serve the public 

interest to redact only the irrelevant and genuinely confidential information, rather than making 

the entire document subject to in camera treatment. Because Respondent’s motion does not 
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distinguish between the confidential and non-confidential portions of the documents at issue,5 it 

should be denied for this reason as well. 

CONCLUSION

For the foregoing reasons, the Court should deny Respondent’s motion. 

Dated: July 15, 2014 Respectfully submitted,

/s/ Katherine Johnson

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov)

Arturo DeCastro (adecastro@ftc.gov)

Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B

Washington, DC 20580

Phone: 202-326-2185; -2551; -2747; -3001

Fax: 202-326-2551

 5 This is something the parties could have accomplished had Respondent sought a meet 

and confer. 
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CERTIFICATE OF SERVICE

I hereby certify that on July 15, 2014, I caused a true and correct copy of the foregoing to 

be served as follows:

One electronic copy to the Office of the Secretary, and one copy through the FTC’s e-filing 

system (although Complaint Counsel received an error message when attempting to file):

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, DC 20580

Email: secretary@ftc.gov

One electronic copy and one hard copy to the Office of the Administrative Law Judge:

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord

Emord & Associates, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

Peter Arhangelsky

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4

Chandler, AZ 85286

Email: parhangelsky@emord.com

Lou Caputo Eric J. Awerbuch

Emord & Associates, P.C. Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4 3210 S. Gilbert Road, Suite 4 Chandler, AZ 85286 Chandler, AZ 85286

Email: lcaputo@emord.com Email: eawerbuch@emord.com

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.

Date: July 15, 2014

/s/ Katherine Johnson

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov)

Arturo DeCastro (adecastro@ftc.gov)

Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B

Washington, DC 20580

Phone: 202-326-2185; -2551; -2747; -3001

Fax: 202-326-2551