UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF THE ADMINISTRATIVE LAW JUD · 

In the Ma.tter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Washington, D.C. 

DockefNo. 9358 

PUBLIC DOCUMENT 

RESPONDENT'S MOTION FOR LEAVE TO FILE A REPLY TO COMPLAINT 

COUNSEL'S OPPOSITION TO RESPONDENT'S MOTION FOR IN CAMERA 

TREATMENT OF PROPOSED TRIAL EXHBITS 

ECM BioFilms, Inc. ("ECM"), by counsel, hereby requests leave to file the attached 

Reply (Exh. A). A Reply is warranted in light of the following: 

• Complaint Counsel raises new argument in the form of the charge that counsel 

to ECM failed to meet and confer prior to filing the Motion for in Camera 

Treatment of Proposed Trial Exhibits. See Opposition, at P. 3. ECM 

respectfully requests that this Court grant it leave to respond to the charge in 

the attached Reply, which concerns solely the aforementioned section of the 

Opposition. 

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

draw the Administrative Law Judge's attention to recent important developments. For the 

foregoing reasons, explained more fully in ECM's accompanying Reply memorandum, good 

cause exists for grant of this motion in that it ensures a full record of argument, rather than a onesided presentation, on the new argument raised by Complaint Counsel. ECM respectfully 

requests that the Court receive and file the attached Reply. 

1 
DATED: July 16,2014 

2 

PUBLIC DOCUMENT 

Respectfully submitted, 

Jo than W. Emard 

EMORD & ASSOCIATES, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
PUBLIC DOCUMENT 

STATEMENT CONCERNING MEET AND CONFER 

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

July 15,2014, Respondent's counsel conferred via telephone with Complaint Counsel in a good 

faith effort to resolve by agreement the issues raised in the foregoing Motion. Complaint Counsel 

represented to Respondent's counsel that they do not consent to this motion for leave. 

3 

Respectfully submitted, 

Jonathan W. Emord (jJmord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on July 16, 2014, I caused a true and correct copy of the paper 

original of the foregoing document to be served as follows: 

One electronic copy to the Office of the Secretary filed through the Federal Trade 

Commission's E-Filing System: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov 

Jonathan Cohen 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Email: jcohen2@ftc.gov 

4 

Elisa Jillson 

Division of Enfoncement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

Arturo Decastro 

Division of Enfoncement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: adecastro@ftc.gov 
PUBLIC DOCUMENT 

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

document that is available for review by the parties and adjudicator consistent with the 

Commission's Rules. 

5 

J OVatlllU1W. Emord \ 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 
Exhibit A 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

RESPONDENT ECM BIOFILM'S REPLY TO NEW ARGUMENT IN COMPLAINT 

COUNSEL'S OPPOSITION TO MOTION FOR IN CAMERA TREATMENT OF 

PROPOSED TRIAL EXIDBITS 

Respondent ECM BioFilms hereby submits this Reply to new argument contained in 

Complaint Counsel's Opposition to ECM's Motion for In Camera Treatment of Proposed Trial 

Exhibits. Consistent with Rule 3.22(d), ECM responds narrowly to Complaint Counsel's 

argument that ECM failed to meet and confer under Rule 3.22(g), first raised in its Opposition 

pleading. 

The parties have conferred on these confidentiality issues earlier in this case. RX-A 

(Apr. 6, 2014 Letter). They agreed at that time, given Complaint Counsel's voluminous 

discovery demands, that ECM would be permitted to designate blocks of information 

"confidential" with the onus on ECM thereafter to reduce or "refine" the quantum of documents 

so designated. Complaint Counsel agreed to this approach, with the caveat that ECM would later 

refine its confidentiality designations. ECM has now done that, in the only manner possible 

through a motion for in camera treatment, reducing the universe of "confidential" material 

1 
PUBLIC DOCUMENT 

substantially, down to just 37 possible exhibits out of some 1 ,500+ files that may be introduced 

in this case. That approach was consistent with the parties' prior conference and understanding. 

Second, the motion for in camera treatment is not a motion listed in Rule 3.22(g) that 

requires a meeting of the parties before submission. See 16 C.F.R. § 3.22(g). Complaint 

Counsel thus errs in its application of the rule, even had no conference occurred. The reason for 

that exclusion is likely because the parties cannot agree to maintain in camera protection of 

exhibit files on their own; that decision is exclusively within the province of this Court, and a 

motion is not optional, it is required. See 16 C.F.R. § 3.45(b) ("A party or third party may obtain 

in camera treatment for material, or portions therefor, offered into evidence only by motion to 

the Administrative Law Judge") (emphasis added). Accordingly, whether the parties agree on 

the confidential nature of ECM' s documents is of no consequence to whether a motion will be 

filed, it must by rule. Because the parties cannot "agree" amongst themselves to maintain in 

camera status, a meeting under Rule 3.22(g) has no utility, unlike, e.g., a discovery motion under 

Rule 3.38 whereby the parties might resolve their differences without resort to motions practice. 

There is therefore no hint of prejudice to Complaint CounseL If anything, ECM suffers because 

a further conference on the subset of documents previously agreed to be assigned confidentiality 

could only have benefitted ECM in that securing Complaint Counsel's endorsement may have 

bolstered its motion. 

Third, the requirement that motions for in camera treatment be filed is prescribed by the 

Scheduling Order and Rule 3.45(c) and, so, ECM has no option but to file, regardless ofthe 

parties respective positions on the merits. Here, again, a Rule 3 .22(g) meeting cannot alter the 

filing requirement. 

2 
PUBLIC DOCUMENT 

It is passing strange for Complaint Counsel to posit the meet and confer argument in the 

face of a rule requirement to file when Complaint Counsel just submitted on July 14, 2014 a 

Motion to Exclude Documents in this case without satisfying Rule 3.22(g) or the Scheduling 

Order. See CC Mot. to Exclude 1999 McClaren/Hart Report for the Truth of the Matter Asserted 

(July 14, 2014). That motion contained no certificate or statement under Rule 3.22 or Paragraph 

4 of the Scheduling Order. In the absence of a rule mandating filing of their motion, Complaint 

Counsel nevertheless failed to meet and confer, yet, hypocritically attacked ECM's submission 

for lack of a conference. If anything, the motion to exclude documents would be of the type 

envisioned within rule 3.22(g) because the parties couid theoretically agree (albeit unlikely) not 

to introduce certain documents. 

In conclusion, ECM has conferred with counsel over the course of this case concerning 

the confidential matters and, therein, defined the universe of documents that would be marked 

confidential. ECM's motion for in camera treatment substantially reduced the universe of 

information marked for in camera designation. Even were no conference to have occurred, Rule 

3 .22(g) renders a meeting superfluous because the motion is required to be filed. 

For the foregoing reasons, and those included in ECM's opening motion for in camera 

treatment, ECM respectfully requests that this Court grant ECM' s motion for in camera 

treatment as explained in ECM' s opening motion. 

3 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Ernord (jemord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 
DATED: July 16, 2014. 

4 

PUBLIC DOCUMENT 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on July 16, 2014, I caused a true and correct copy of the foregoing to 

be served as follows: 

One electronic copy to the Office of the Secretary through the e-filing system: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov 

Jonathan Cohen 

Division of Enforcement 

Bureau of Conswner Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: jcohen2(a),ft.c.gov 

5 

Elisa Jillson 

Division ofEnfoncement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

Arturo Decastro 

Division of Enfoncement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

Email: adecastroicl;ftc. gov 
PUBLIC DOCUMENT 

I certify that I retain a paper copy of the signed original of the foregoing document that is 

available for review by the parties and adjudicator consistent with the Commission's Rules. 

DATED: July 16, 2014 

6 

Respectfully submitted, 

Is/ Jonathan W. Emord 

Jonathan W. Emord Gemord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
Exhibit RX-A 
February 6, 2014 

VIA EMAIL: 

Katherine Johnson (kjohnson3@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Jonathan Cohen Ucohen2@ftc.gov) 

U.S. Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, D.C. 20580 

ECMReply 

RX-A 

_A ProfessioJ1al Co~·poration 

WASHINGTON, D.C. I VIRGINIA I PHOENIX 

11808 WOLF RUN LANE 

CLIFTON, VA 20124 

32105. GILBERT R OAD 

SUITE4 

CHANDLER,AZ 85286 

(602) 388-8899 1 FAX (602) 393-4361 

1050 SEVENTEENTH STREET, N.W. 

SUITE600 

WASHINGTON, D.C. 20036 

(202) 466-6937 1 FAX (202) 466-6938 

Peter A. Athangdsky, &q. 

602.334.4416 

parhangelsky@emord.com 

Re: No. 9358, In re ECM BioFilms; Document Production 

Dear Counsel: 

This letter follows our conversation of February 6, 2014 concerning Respondent ECM's 

discovery response. The production defined in this letter will render moot Complaint Counsel's 

pending Motion to Compel Production of Documents (filed January 23, 2014). 

ECM shall produce the entirety of its customer correspondence files contained in its 

archived electronic storage for the period of January 1, 2009 through January 1, 2014. That 

production will include all files contained in ECM's electronic storage or database related to all 

ECM customers. That production will be limited in the following ways. First, ECM will redact 

or expurgate its customers' confidential business information to the extent that information is 

defined by mutual confidentiality agreements executed with certain ECM customers. Second, 

ECM will redact or expurgate all information subject to privilege, including, e.g., the attorney 

work product privilege, the attorney-client privilege. and trade secret privileges. Third, because 

ECM will be required to produce bulk documents under short deadlines, ECM shall designate all 

correspondence with customer<> (and associated files) as confidential under the standing 

protective order. Thereafter ECM will refine its designations. 

ECM will timely respond to Complaint Counsel's second set of discovery requests, and 

provide all responsive documents under Complaint Counsel's first set of discovery requests, 

subject to the aforementioned limitations. ECM will produce all scientific and technical 

documents responsive to your discovery demand if those documents (1) are possessed by ECM 

and (2) were not already produced in prior productions. 

EMORD &AsSOCIATES, P.C. 

WASHINGTON, D.C. I VIRGINIA I ARlZONA 

(202) 466-6937/FAX (202) 466-6938 

WWW.EMORD.COM 
ECMReply 

RX-A 

ECM will produce its archived tiles on a rolling basis, meaning as it is retrieved and 

immediately after it is reviewed by counsel, on or before February 21. 2014. Thus, ECM agrees 

to complete the production by February 21, 2014, subject to its obligation and right to amend or 

supplement discovery under 16 C.F.R. § 3.31(e). ECM will produce the remainder of its 

Microsoft Access database summations (encompassing all emails, faxes, and phone calls from 

January 1, 2009 to the present) on or before February 12, 2014. ECM will not produce the MS 

Access notations in native format because the program produces records in PDF format, which 

have been supplied to Complaint Counsel in a "reasonably usable form." See 16 C.F.R. § 

3.37(c)(ii); see also 16 C.F.R. § 3.37(c)(iii) ("[a] party need not produce the same electronically 

stored information in more than one form"). 

ECM provides this proposal in a good faith effort to resolve outstanding discovery 

disputes. The Court has imposed a 1 pm Eastem deadline on February 7, 2014 to consider any 

surreply ECM may file in response to Complaint Counsel's pending Motion to Compel. ECM 

intends to file a Motion for Leave to File a Surreply no later than I 2:00pm Eastern, February 7, 

2014, unless Complaint Counsel agrees to withdraw or moot the pending motion before that 

time. 

Please do not hesitate to contact us with any questions. 

EMORD &AsSOCIATES, P.C. 

WASHINGTON, D.C. I VIRGINIA I ARIZONA 

Sincerely, 

if~ Peter A. Arhangelsky 

Counsel to Respondent ECM BioFilms, Inc. 

(202) 466-6937/FAX (202) 466-6938 

WWW.EMORD.COM