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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

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

COUNSEL’S OPPOSITION TO RESPONDENT’S MOTION TO COMPEL EXPERT 

RESPONSE TO SUBPOENAS DUCES TECUM

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

Reply. A Reply is warranted in light of the following:

• Complaint Counsel raises new argument concerning the facial validity of ECM’s 

subpoenas;

• Complaint Counsel altered its original position conveyed to ECM in the parties’ Rule 

3.22(g) negotiations, and has now abandoned its primary legal argument; and

• Complaint Counsel seeks exemption from discovery burdens substantially less onerous 

than the discovery burdens imposed on ECM.

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 or controlling 

authority that could not have been raised earlier in the party’s principal brief. For the foregoing 

reasons, explained more fully in ECM’s accompanying Reply memorandum, good cause exists 

for grant of this motion. ECM respectfully requests that the Court receive and file the attached 

Reply.

05 30 2014
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Respectfully submitted,

 

Jonathan W. Emord

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

DATED this 30th day of May 2014.
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CERTIFICATE OF SERVICE

I hereby certify that on May 30, 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:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-113

Washington, DC 20580

Email: secretary@ftc.gov

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

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

One electronic copy to Counsel for Complainant:

Katherine Johnson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov
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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.

 

Jonathan W. Emord

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

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

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RESPONDENT ECM BIOFILM’S REPLY TO COMPLAINT COUNSEL’S 

OPPOSITION TO RESPONDENT’S MOTION TO COMPEL1 EXPERT RESPONSE TO 

SUBPOENAS DUCES TECUM

Respondent ECM BioFilms, Inc. (“ECM”) submits this Reply memorandum in response 

to Complaint Counsel’s Opposition, filed May 28, 2014. Under Rule 3.22(d), a Reply is 

appropriate where “parties wish to draw the Administrative Law Judge’s or Commission’s 

attention to recent important developments or controlling authority that could not have been 

raised earlier in the party’s principal brief.” See 16 C.F.R. § 3.22(d). Complaint Counsel has

abandoned the primary legal argument advanced to ECM at the outset, and propounds instead a 

 1 ECM’s pleading was properly filed as a Motion to Compel under Rule 3.38, which 

governs motions seeking to compel discovery. See 16 C.F.R. 3.38(a). Rule 3.38(b) gives the 

ALJ authority to require compliance with subpoenas. Rule 3.38(c) permits certification to the 

Commission of a request to enforce a subpoena. Complaint Counsels’ reliance on In the Matter 

of Phoebe Putney Health Sys., Inc., et.al., 9348, 2013 WL 2444710 (F.T.C. May 30, 2013) is 

misplaced. There the respondent asked the Court to enforce a subpoena through a footnote in an 

unrelated pleading. Id. at 5, n.2. This Court rejected that maneuver because the request should 

have been made in a formal, independent motion. The decision said nothing about whether a 

Rule 3.38 motion to compel was appropriate. It is, and many other parties in Part 3 adjudications 

have filed similar motions, including complaint counsel. See, e.g., In re MSC.Software Counsel, 

FTC Dkt. No. 9299 (Dec. 17, 2001) (Complaint Counsel’s “Motion to Compel Compliance with 

Subpoenas Ad Testificandum and Duces Tecum,” filed under 16 C.F.R. § 3.38).
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different position based on burden. Accordingly, ECM has not had an opportunity to brief that 

issue, which by leave it does so in this reply

A. ECM’s Subpoena Was Properly Issued In Accord With FTC Rules

An out-of-state respondent, ECM has complied with Rule 3.34(b) to the letter when 

issuing its subpoenas duces tecum.

2

 ECM’s subpoenas are materially indistinguishable from

those issued by Complaint Counsel. ECM has dispatched approximately 20 third-party 

subpoenas in this matter. Complaint Counsel only now argues that ECM’s subpoenas are 

somehow procedurally deficient, notwithstanding that Complaint Counsel has previously 

supported ECM’s same non-party subpoenas when compliance with those documents were in 

Complaint Counsel’s interest. See Dkt. No. 9358, CC Limited Opp. to OWS Mot. to Quash 

(Mar. 20, 2014).

B. Complaint Counsel’s New Argument of Burden Lacks Support Given This Court’s 

Prior Orders Compelling ECM to Produce Vastly Greater Discovery

Complaint Counsel argued to ECM that ECM had no right to issue Rule 3.34 subpoenas 

to Complaint Counsel’s experts. See Exh.’s RX-C; RX-D. At the outset, Complaint Counsel 

contended to ECM that Marsh v. Jackson, 141 F.R.D. 431, 432 (W.D. Va. 1992) (mag. op.) and 

its progeny forbade discovery of expert witnesses outside of Rule 3.31A. See Exh. RX- C. ECM 

disagreed and the parties exchanged legal positions on that point. See Exh.’s RX-D, RX-E 

Complaint Counsel maintained that, based on Marsh, et al., the Rule 3.31A mandatory 

disclosures were the only information available to ECM concerning Complaint Counsel’s 

experts, and that non-party subpoenas were not authorized by the rules. See Exh. RX-D. 

 2 The FTC’s Rules of Practice were amended in 2009 to specifically permit “[c]ounsel for 

a party [to] sign and issue a subpoena, on a form provided by the Secretary...” See 16 C.F.R. § 

3.34(a), (b).
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In the Opposition, however, Complaint Counsel abandoned its underlying premise and 

instead relied on a Rule 3.31(c)(2) burden theory. See Dkt. No. 9358, CC Opp. to ECM Mot. to 

Compel at 6-8. Complaint Counsel therefore did not confront the issues in ECM’s opening 

motion, which ECM advanced based on the information exchanged in the Rule 3.22(g) 

conference. See generally CC Opp. to ECM Mot. to Compel. Complaint Counsels’ volte face on

Marsh nullified the Rule 3.22(g) good-faith conference and prevented a “genuine effort to 

resolve the dispute.” See Rule 3.22(g); Care Envtl. Corp. v. M2 Technologies Inc., CV-05-1600 

(CPS), 2006 WL 1517742 (E.D.N.Y. May 30, 2006). 

Complaint Counsel now argues under Rule 3.31A, the Scheduling Order, and inapposite 

precedent, that Rule 3.31(c)(1) “contemplate[s] discovery of a circumscribed universe of 

information,” which does not include the expert discovery ECM seeks. Rule 3.31(c)(1), 

however, explicitly contemplates that type of discovery. See 16 C.F.R. § 3.31(c)(1). 

Additionally, the Court’s Scheduling Order does not limit Rule 3.31’s scope. The opinion in In 

the Matter of Basic Research, No. 9318, 2004 FC LEXIS 237, *9 (F.T.C. Dec. 9, 2004) not only 

supports the use of subpoenas duces tecum to obtain discovery from experts but reaffirms Rule 

3.31(c)(1)’s broad scope, which is not limited to certain categories of documents or information. 

Id. (noting that the discovery sought must be “reasonably expected to yield information relevant 

to the allegations to the allegations of the complaint, to the proposed relief, or to the defenses of 

any respondent”).

C. Complaint Counsel Seeks to Impose Discovery Burdens on ECM while Claiming 

Immunity from Same for Itself

Complaint Counsel hypocritically argues that ECM’s subpoenas would unduly burden its

compensated witnesses, after having demanded broad discovery from ECM of over 115,000 
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responsive pages within just a few weeks; having conducted more than fifteen fact depositions 

across the continental United States and Hawaii; and having subpoenaed more than fifty (50) 

ECM customers. The extensive discovery burdens on ECM are well-documented. See, e.g.,

Dkt. No. 9358, ALJ Order Denying Respondent’s Motion for Protective Order at 8 (Jan. 10, 

2014). The declarations of Complaint Counsel’s experts offer far less in the way of burden when 

compared with ECM’s affidavits, and those declarations do not prove consistent with FTC 

precedent the presence of any burden sufficient to justify quashing the subpoenas. The Court

should employ the same standard of review and reach the same conclusion it reached with 

respect to ECM’s requests for relief from a far greater burden in expense, time, and volume of 

production. Discovery in this case has been one-sided. Although Complaint Counsel has served 

dozens of subpoenas on ECM or its representatives, the only witnesses Complaint Counsel is 

responsible for are its experts; yet those experts it would shield from any discovery that aims at 

adducing proof of bias and lack of independence. 

Complaint Counsel has failed to carry its high burden to prove the requests unduly 

burdensome or overbroad. See Nat'l Acad. of Recording Arts & Sciences, Inc. v. On Point 

Events, LP, 256 F.R.D. 678, 680 (C.D. Cal. 2009). Complaint Counsel has failed to demonstrate 

that ECM’s subpoenas are “of such marginal relevance that the potential harm occasioned by 

discovery would outweigh the ordinary presumption in favor of broad disclosure.” Robertson v. 

Bair, 242 F.R.D. 130, 136 (D.D.C. 2007). Complaint Counsel has not shown harm of any type 

will befall Drs. McCarthy, Tolaymet, and Frederick if they must complete a search of documents 

in response to the few discrete requests ECM presents, all tailored to receive information about 

those expert’s credentials, conflicts, bias, and independence. Evidence of bias is essential, 

especially where Complaint Counsel’s own experts have ties to industry members overtly hostile 
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to ECM and its technology. See Dkt. No. 9358, Resp. Mot. to Compel, at 1-2, n. 2 (May 19, 

2014). ECM must be given the chance to fully investigate the breadth of witness bias and 

conflicts, as must this Court. Note well that Complaint Counsel’s own subpoenas and deposition 

notices sought the very same information from non-party witnesses. See, e.g., Exh.’s RX-O-1, 

RX-O-2.

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 30th day of May 2014.