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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

ECM BIOFILM’S OPPOSITION TO COMPLAINT COUNSEL’S MOTION TO 

COMPEL AND FOR SANCTIONS

ECM BioFilms, Inc. (“ECM”) hereby opposes Complaint Counsel’s Motion to Compel 

and for Sanctions, filed February 28. The motion is late-filed and stale. ECM will complete 

production of all responsive documents by March 14. Complaint Counsel has thus chosen to 

move for an order compelling production between March 7 (the earliest date by which this Court 

could act following the March 6 receipt of ECM’s timely opposition) and March 14. The 

Scheduling Order sets April 3 as the deadline for completion of discovery, Scheduling Order at 

1, and there is no rule requiring production to be completed by February 21 or any day in March 

before March 14. 

On February 20, ECM informed Complaint Counsel that ECM’s repeated entries into its

PDF files to extract responsive documents revealed that the PDFs included more responsive 

documents, and that the extraction process was more cumbersome, than anticipated (thereby 

necessitating additional time to complete production, from February 21 to March 14). See Ex. 1

(Affidavit of Peter Arhangelsky, Esq.); Compl.Counsel’s Motion to Compel and for Sanctions, 

Ex. A, Attachment 3 at 1 (Feb. 28, 2014). Although informed on February 20, Complaint 

03 06 2014
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Counsel sat on its motion for 8 days, until February 28 (and both held a meet and confer and 

filed its motion that same day). On February 20, and again in the meet and confer on the 28th, 

Respondent’s Counsel agreed to a volitional extension of the April 3 fact discovery deadline if 

needed to guard against the remote possibility of prejudice arising from the slight production 

delay. 

Given that complete production will occur by March 14, it strains credulity to discern 

what possible benefit could come to Complaint Counsel or this Court by ordering production be 

completed on some day between March 7 and 14. Contrary to Complaint Counsel’s recitation of 

the facts, the record here is one of voluminous, continuous and diligent production. See Ex. 1, 

Attachment A. If remaining production were in fact urgently needed on February 21, one would 

have expected Complaint Counsel to file its motion on February 20 (when it was informed of the 

delay) or 21, but instead Complaint Counsel languished for an entire week, belying its contention 

of urgency.

1

 On that record of laxity is this Court to deprive ECM of a week to complete 

production when ECM has since December supplied over 65% of all responsive documents 

remaining through weekly document transfers to Complaint Counsel? See Ex. 2 at 3 (Affidavit of 

Robert Sinclair). 

Only one of ECM’s six employees (Robert Sinclair) possesses the technical ability and 

acumen to extract the responsive documents from the PDFs. Id. at 1. Moreover, the responsive 

 

1 As of February 11, 2014, Complaint Counsel possessed complete production of ECM’s 

contemporaneous database summations. Those summations include all material content not only 

of every email but also of every material fax and phone interaction had with ECM customers 

between January 1, 2009 and December 31, 2013. Those files are thus materially inclusive of 

the files now being produced and belie any contention of prejudice. That production may 

explain why Complaint Counsel experienced no sense of urgency to file on the 20th. Moreover, 

Complaint Counsel took 14 hours of deposition testimony from ECM’s President, 7 of its Chief 

Financial Officer Ken Sullivan, and another 7 hours of its Sales Director Thomas Nealis, 

predicated in no small part on ECM’s database summations. 
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documents in the PDFs are not themselves transferable and, so, must be copied into transferrable 

files, document by document. Id. at 2. March 14 is the earliest date by which ECM can 

physically achieve complete production, but to ensure as prompt production as possible, ECM 

produced all of its contemporaneous database summations as of January 31 and has been 

producing all correspondence with clients in chunks of thousands and tens of thousands of pages, 

as soon as they are extracted from the PDFs. Id. at 3. At present Complaint Counsel possesses 

over 65% of the universe of responsive documents (not less than 50% as Complaint Counsel 

misrepresents to this Court). 

There is no precedent that supports a production order and sanctions against a party on 

this record of diligent production and with complete production set for March 14. ECM has 

consistently produced responsive documents in accordance with the rules, just not as fast as 

Complaint Counsel would like. On this record and in light of the fact that complete production 

will occur by March 14, well before the April 3 close of fact discovery, grant of the present 

motion would be an unprecedented and draconian measure. 

I. COMPLAINT COUNSEL’S MISREPRESENTATION OF THE FACTUAL

RECORD AND LAXITY CONTRIBUTING TO DELAY 

As the docket reflects, on December 13, 2013, ECM moved for a protective order in 

response to Complaint Counsel’s November 27, 2014 demand for production of its customer 

lists, customer specific revenues, and total correspondence files. The point of ECM’s motion 

was, in part, that Complaint Counsel’s discovery demands were unduly burdensome; thus ECM 

pled for relief from burden under Rule 3.31(d). Through several discovery motions, ECM has 

explained that unlimited discovery concerning ECM’s customer base threatens to cause ECM 

irreparable financial harm. On January 10, 2014, the court ruled against ECM on the customer 

lists, and on February 4, 2014, the court ruled against ECM on the customer specific revenues. 
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Until those discovery rulings, the validity and scope of Complaint Counsel’s document requests 

were in issue. On January 16, 2014, ECM produced its customer lists and on February 6, 2014 it 

produced its revenues (adding on February 14, 2014 foreign customer accounts and revenues 

upon Complaint Counsel’s request dated February 6th). ECM and Complaint Counsel held a 

meet and confer on January 16th to discuss production of all ECM correspondence. ECM tried 

without success to get Complaint Counsel to honor its pledge, captured in this Court’s January 

10th Order at 5-8, to reduce ECM’s production burden. See Or. Denying Respondent’s Mot. For 

Protective Or. and Granting Compl. Counsel Cross-Motion to Compel at 7 (Jan. 10, 2014) 

(Complaint Counsel promising to “limit the discovery in a manner that conserves both parties’ 

resources”). Complaint Counsel refused to reduce the burden and, so, a motion to compel 

followed. See Compl. Counsel’s Mot. for Sanctions for Refusal to Comply with the Ct.’s Jan.

10, 2014 Or. (Jan. 28, 2014). Before that motion was acted upon, ECM agreed despite the 

burden to produce all correspondence files from January 1, 2009 to December 31, 2013. 

Independent of that dispute, on February 11, 2014 ECM completed its production to Complaint 

Counsel of all contemporaneous database summations containing all substantive customer 

emails, faxes, and phone interactions between January 1, 2009 and December 31, 2013. On 

February 5, 2014, ECM agreed to supply Complaint Counsel, on a rolling basis, all 

correspondence contained in archived PDFs by February 21 (which then, before extensive entry 

into the archived PDFs, appeared doable). That very day, ECM began extracting the emails and 

producing them as they were extracted. The production schedule is attached, showing 

production of tens of thousands of pages of emails, culminating in a present total of 72,448 

pages. See Ex. 1, Attachment A. Informed on February 20 that production would require until 

March 14, Complaint Counsel sat on the matter for over a week before filing its motion. That 
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eight day delay belies any serious claim of prejudice. Complaint Counsel thus contributed by its 

own laxity to a postponement of this court’s consideration until a time very nearly the point at 

which the motion would be moot (the earliest the court could rule is March 7 and production will 

be complete by March 14). 

II. COMPLAINT COUNSEL MISCONSTRUES RULE 3.37 AND IS 

“GUILTY” OF VIOLATING ITS OWN MISCONSTRUCTION

Complaint Counsel contends ECM violated Rule 3.37 by producing responsive 

documents after 30 days.2 Complaint Counsel misconstrues Rule 3.37. Under its construction, 

even if (as here) a party moves for a protective order to alleviate burden pursuant to Rule 

3.31(d), it must turn over contested documents before the Court rules. Neither Rule 3.37 nor any 

other rule or decision of this agency supports that construction. Indeed, by its wording Rule 3.37 

plainly contemplates disputes over discovery that are the subject of motion to be ruled upon by 

the court ab initio.

Rule 3.37(b) requires that a “response” be given a document production request by no 

later than 30 days after receipt of the request, and ECM timely gave its written response 

containing objections. That response can come in the form of objections and/or motions for 

protective order, which are “responses” so long as they are filed within 30 days of request 

receipt. Under the rule, production is anticipated to follow objection or court order, lest the rule 

would deny the very relief sought by objection or motion. 

Contrary to Complaint Counsel’s contentions, ECM timely responded to each of its two 

document production requests and moved rapidly for judicial decision on points of discord. On 

 

2 Complaint Counsel supplied a written response to ECM’s document production request 

of December 3, 2013, within 30 days but supplied the vast majority of responsive documents 

after 30 days, on January 13, 2014. Apparently Complaint Counsel would have one rule apply to 

itself and another to Respondent. 
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November 27th, Respondent received Complaint Counsel’s first document production request

and responded to it on December 27th. On January 15th, Respondent received Complaint 

Counsel’s second document production request and responded to it on February 17th. Both 

written responses occurred within 30 days. ECM therein timely objected to production of the 

PDF files here in issue and moved on December 13, 2014 for a protective order. On January 10, 

2014, this Court ruled that ECM’s customer lists be turned over, but did not rule on ECM’s 

request that the unlimited scope and time for production of the PDF files be subject to limits. 

ECM complied with the Court’s order by producing the customer lists and customer specific 

revenue lists. On January 16, 2014, and January 31, 2014, ECM also provided to Complaint 

Counsel its entire database summations containing all substantive emails, faxes, and phone 

interactions with its customers. Despite meet and confer sessions at which ECM called on 

Complaint Counsel to honor its promise to this Court (recited in the Court’s Jan. 10, 2014 Order, 

at 7) to accept reasonable limits on the scope of its demand for all ECM emails, Complaint 

Counsel refused and filed a motion to compel. During the pendency of that motion, ECM 

agreed, despite the burden, to produce all correspondence files. Thus far, 72,448 pages of 

correspondence files have been produced with all remaining coming by March 14. 

III. THERE IS NO FAILURE TO COMPLY AND NO JUSTIFICATION FOR 

COMPELLING PRODUCTION SOONER THAN MARCH 14 

The movant bears the burden of justifying sanctions. See Gates Rubber Co. v. Bando 

Chem. Indus., Ltd., 167 F.R.D. 90, 109 (D. Colo. 1996) (the burden of proof remains with the 

moving party, even where the movant seeks lesser sanctions). In the discovery context, 

sanctions are justified on proof of wilful refusal to comply with a rule or order (meaning the 

absence of good cause for non-compliance), not on a record of continuous good faith production. 

Here, ECM has met all discovery deadlines as prescribed by the rules, has proceeded in good 
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faith to seek judicial relief from onerous burdens, and has complied with all court orders. 

Moreover, ECM is producing all responsive documents as fast as it can. There is no nonproduction. Complete production will be achieved by March 14. 

Moreover, in the single instance in which ECM deviated from its agreement with 

Complaint Counsel (not a rule and not an order), it has done so solely based on the timing of 

complete production, not on the scope of what is produced, and solely because of necessity. 

There is in this nothing that would justify sanctions. 

Complaint Counsel asks the Court to overrule summarily and deem waived all of ECM’s 

objections and claims of privilege. That draconian sanction has never before been granted on a 

record of diligent, on-going, and good faith production. See First Sav. Bank, F.S.B. v. First Bank 

Sys., Inc., 902 F. Supp. 1356, 1361 (D. Kan. 1995) (noting that “waiver of a privilege is a serious 

sanction most suitable for cases of unjustified delay, inexcusable conduct, and bad faith”). 

Complaint Counsel asks the Court to amend the scheduling order to allow Complaint 

Counsel additional time to conduct fact discovery and that ECM be denied the right to introduce 

into evidence any documents delivered to Complaint Counsel after February 21. Because as of 

February 11, 2014, ECM produced all of its contemporaneous database summations of all 

substantive emails, faxes and phone interactions with customers, Complaint Counsel’s 

unsupported assertions of prejudice are superficial, inadequately supported with facts 

demonstrating true hardship. Nevertheless, for specific good cause shown, ECM has already 

stated that it is perfectly willing to accommodate a reasonable request for additional fact 

discovery. The date of February 21 is neither required by rule nor by order of this Court. 

Consequently, there is no justification for denying ECM the opportunity to move into evidence 

or rely upon documents it supplies to Complaint Counsel after that date and by March 14. 
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Moreover, the 15 business days from February 21 to March 14 within which ECM is producing 

all remaining responsive documents is well before the April 3 discovery deadline and, so, is not 

prejudicial to Complaint Counsel. 

Complaint Counsel asks the Court to grant the right to conduct additional depositions in 

Washington, D.C. germane to the late-produced documents, knowing the costs of transporting 

the witnesses to DC constitutes a hardship for them. Complaint Counsel has not proven a 

specific need to justify deviation from the Scheduling Order and has in fact deposed all witnesses 

it has desired to depose, replete with all substantive email, fax, and phone interactions from 

ECM’s database summations. Indeed, ECM’s principals have been extensively examined (the 

deposition of Robert Sinclair, for example, was 14 hours over two days, that of Ken Sullivan, 7 

hours, and that of Thomas Nealis was 7 hours), belying the notion that Complaint Counsel 

lacked information sufficient to conduct extensive examinations. We therefore request that the 

Court demand that if Complaint Counsel wishes to perform a specific deposition past the 

Scheduling Order deadline that it move for leave so to do and explain why it was not able to 

perform the deposition within the time set in the Scheduling Order. 

IV. CONCLUSION 

For the foregoing reasons, ECM respectfully requests that Complaint Counsel’s motion to 

compel and for sanctions be denied. 
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Respectfully submitted, 

 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED this 6th day of March 2014.
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STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent’s Counsel hereby states that the content of the foregoing 

Opposition and its exhibits do not contain confidential information under this Court’s Protective 

Order and, so, ECM hereby files this Opposition and its exhibits to the public docket. 

 

DATED: March 6, 2014 

 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937
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CERTIFICATE OF SERVICE 

I hereby certify that on March 6, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

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

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov)

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

 Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

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

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

Commission’s Rules.

 

DATED: March 6, 2014 

 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937
Respondent’s Exhibit 1

(RX-1) 

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

DECLARATION OF PETER A. ARHANGELSKY 

I, Peter A. Arhangelsky, declare under penalty of perjury that the following is true and 

correct to the best of my knowledge, information, and belief. 

1. I am attorney with the firm Emord & Associates, P.C. and am one of counsel 

representing ECM BioFilms, Inc. in the above-referenced proceeding. 

2. The meet and confer conferences with Complaint Counsel described in the ECM 

pleading entitled, “Respondent’s Opposition to Complaint Counsel’s Motion to Compel and for 

Sanctions” are accurate in all material respects.

3. I or attorneys working under me at Emord & Associates, P.C. have supplied all 

documents produced by ECM BioFilms, Inc. to Complaint Counsel as reflected in Attachment A 

hereto. 

4. On February 20, 2014, after receiving word from Robert Sinclair of an 

unanticipated volume of documents for production and difficulty of extracting those documents 

from archived PDF files, I informed Complaint Counsel in person after the conclusion of 

Sinclair’s deposition that production of all responsive documents was not possible by the parties’ 

previously agreed to date of February 21 and that production would be completed by March 14, 

RX-1 at 1 PUBLIC DOCUMENT
2014. I also informed Complaint Counsel that ECM would continue to produce documents daily 

as they were extracted between February 21 and March 14. 

Executed on: March 6, 2014 /s/ Peter A. Arhangelsky 

 Peter A. Arhangelsky 

 Emord & Associates, P.C. 

 3210 S. Gilbert Ave., Ste 4 

 Chandler, AZ 85286 

 Ph: 602-388-8899 

 Em: parhangelsky@emord.com 

RX-1 at 2 PUBLIC DOCUMENT
Respondent’s Exhibit 1

Attachment A 

(RX-1:A) 

PUBLIC DOCUMENT
ATTACHMENT A 

Timeline of ECM Production 

 December 27, 2013: ECM produces to Complaint Counsel 1,212 pages from its 

contemporaneous summation database, containing all material content of emails, faxes, 

and phone call interactions with customers. 

 January 16, 2014: ECM produces to Complaint Counsel its unredacted customer list. 

 January 20, 2014: ECM produces to Complaint Counsel its list of revenues for each 

customer and 45 pages of additional responsive documents. 

 January 31, 2014: ECM produces to Complaint Counsel 2,458 pages from its 

contemporaneous summation database, containing all material content of emails, faxes, 

and phone call interactions with customers. 

 February 6, 2014: ECM produces to Complaint Counsel its customer specific revenue 

list. 

 February 11, 2014: ECM produces to Complaint Counsel all remaining pages, 1,439 

pages, from its contemporaneous summation database, containing all material content of 

emails, faxes, and phone call interactions with customers. 

 February 18, 2014: ECM produces to Complaint Counsel 20,566 pages of customer 

correspondence. 

 February 21, 2014: ECM produces to Complaint Counsel 5,389 pages of additional 

customer correspondence. 

 February 24, 2014: ECM produces to Complaint Counsel 13,183 pages of additional 

customer correspondence. 

 February 26, 2014: ECM produces to Complaint Counsel 6,571 pages of additional 

customer correspondence. 

 March 4, 2014: ECM produces to Complaint Counsel 14,475 pages of additional 

customer correspondence. 

 March 6, 2014: ECM Produces to Complaint Counsel 6,456 pages of additional 

customer correspondence. 

Total Number of Pages Produced to Complaint Counsel since December 27, 2013: 72,448. 

RX-1:A at 1 PUBLIC DOCUMENT
 /s/ Peter A. Arhangelsky 

 Peter A. Arhangelsky 

 Emord & Associates, P.C. 

 3210 S. Gilbert Ave., Ste 4 

 Chandler, AZ 85286 

 Ph: 602-388-8899 

 Em: parhangelsky@emord.com 

RX-1:A at 2 PUBLIC DOCUMENT
Respondent’s Exhibit 2 

(RX-2) 

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RX-2 at 1 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 

AFFIDAVIT OF ROBERT SINCLAIR 

I, Robert Sinclair, declare under penalty of perjury that the following is true and correct to the 

best of my knowledge, information, and belief: 

1. I am the President and CEO of ECM BioFilms, Inc. 

2. I am the only person employed by ECM BioFilms, Inc. who both understands how to 

access and extract correspondence from the PDF files that are archived in our 

computers and who understands whether any particular content in those files falls 

outside the scope of the agreed-to production by either being privileged, trade secretrelated or otherwise prohibited from transmission to others by ECM's mutual 

confidentiality agreements entered into with customers. 

3. Each archived folder for a calendar quarter contains hundreds of files. Each file in turn 

contains from several to tens of emails any number of which may contain customer 

correspondence. 

4. ECM stores its archived email files, including all customer correspondence, in PDF file 

formats. A PDF is a Portable Document Format, which is a file that provides an 

electronic image of text and graphics that looks like a printed document and can be 
RX-2 at 2 PUBLIC DOCUMENT

viewed, printed, and electronically transmitted. Individual emails within larger PDF 

files cannot be separately viewed. Rather, those emails must be manually "extracted" 

from the larger PDF files, or surrounding information must be deleted. While PDF 

content can be located through keyword searches, ECM cannot automatically separate 

responsive information from the protected or clearly non-responsive information. That 

process must be manual. 

5. ECM employees have always been instructed to convert their emails daily (or weekly, 

as time permits) into PDF format and upload those final files into correspondence 

folders on ECM's server. ECM stores its correspondence PDF files within a typical 

Windows "folder." When an ECM employee converts his or her email, he or she 

basically "prints" the file into a PDF image. The PDF is like a hardcopy printout. 

Attachments are not able to be printed in bulk in this way so the ECM employees save 

them separately in whatever folder is appropriate for the subject matter or source and 

often with a different name. Though the PDF an email shows an "attachment" as an 

image in the printout, it is not actually attached or linked to the PDF image. 

6. In order to comply with Complaint Counsel's demand for production of all 

correspondence between ECM and its customers between January 1, 2009 and 

December 31 , 2013, I have had to take all of the potentially responsive PDF files from 

within each ofECM's correspondence archive file folders and combine them into one 

larger (but still manageable) PDF file for each calendar quarter. I have then had to 

review that master PDF and manually remove information that is privileged, contains 

proprietary consumer data subject to our confidentiality agreements, or falls clearly 

beyond the scope of this action (e.g., information concerning ECM's 40l(k) program or 

employee benefits). 
RX-2 at 3 PUBLIC DOCUMENT

7. Before I began my daily effort to extract the correspondence files from the PDFs, I 

anticipated the project to be completed by February 21 , since commencing the work 

from late January to February 20th, I discovered both that the volume of responsive 

materials and the ensuing file sizes imposed a time burden greater than I had 

anticipated, and the speed with which I can extract and save to a production file each 

responsive email or other document exceeds my original estimation. 

8. To date, I have completed extraction of all correspondence files from January 1, 2009 

through October 20 11. 

9. Over halfway through the responsive files, I can now predict complete production will 

be achieved by March 14, 2014. I am spending 7 to 12 hours daily, including on the 

weekends, performing this function. It is time consuming and laborious work. I cannot 

produce the files any faster than I am. It was physically impossible for me to produce 

all of the responsive files by February 21. 

10. As I complete file extraction and save it to a production file, I dispatch the production 

file to my attorneys who then redact customer credit card information, customer 

proprietary formulae, and attorney-client correspondence among other privileged 

information, affix bates stamps, and then send the files immediately to Complaint 

Counsel upon Complaint Counsel's establishment of a link for large file reception. 

Under that model, we have efficiently delivered production files to counsel at least 

weekly, often including productions ranging from 5,000-20,000 pages of responsive 

information. As of March 6, 2014, ECM has produced to Complaint Counsel 72,448 

pages of responsive documents. 

Executed on: 3/6/14 

R~- o ert me a1r