QR\G\NP\L 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF THE ADMINISTRATIVE LAW JUD 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

RESPONDENT'S OPPOSITION TO COMPLAINT COUNSEL'S 

MOTION TO COMPEL 

Respondent, ECM BioFilms, Inc. ("ECM") hereby opposes Complaint Counsel's Motion 

to Compel Respondent to Produce Documents filed January 23,2014. On January 14, 

Complaint Counsel withdrew its Document Production Request No. 13, see CCX-A:2, the only 

one seeking customer correspondence documents subject to its present motion. Moreover, 

ECM's response to Complaint Counsel's second set of requests, served on January 15, is not yet 

due (and will not be due until February 17, see Rule 3.37(b )). Accordingly, Complaint 

Counsel's motion to compel is deniable summarily because it lacks an essential factual predicate: 

a pending document request for which production was refused. 

Moreover, although material to its motion, Complaint Counsel has omitted therefrom the 

fact that ECM has pledged to Complaint Counsel, and is committed to disclose in production 

scheduled for January 31 and March 15, its entire database of contemporaneous summations of 

every customer email, facsimile, and phone call from January 1, 2009 to the present. Further, 

ECM has pledged to Complaint Counsel, and is committed to disclose, any archived email 

referenced in the summations, provided Complaint Counsel takes the time to examine the 

1 

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PUBLIC DOCUMENT 

REDACTED 

summations, identify the emails that are relevant, and requests their production. ECM continues 

to search internal files for responsive information, of which it has already produced hundreds of 

documents during Complaint Counsel's pre-complaint investigation. To date, ECM has 

produced, in addition to over 500 documents in the pre-complaint stage, a total of 1,904 pages of 

documents. By January 31, that figure will rise by at least 2,500 pages, and by March 15, that 

figure will rise yet again. ECM is committed to produce all responsive documents it possesses 

by the April3 close of discovery. 

For the reasons set forth more fully below, Respondent respectfully requests that the 

Court deny Complaint Counsel's premature and incompetent Motion to Compel. 

BACKGROUND 

On January 10, 2014, this Court ordered ECM to produce to Complaint Counsel its 

customer list. See Jan. 10 Or See Compl. Mot. to Compel, at 2. Contrary to the representations 

made in Complaint Counsel's motion, ECM produced its complete, unredacted customer list to 

Complaint Counsel on Thursday, January 16,2014. We attach here a complete copy ofthat 

production. See Exh. CCX-A:2. To be sure, that complete list was appended to Complaint 

Counsel's previously filed motion for sanctions as Exh. CCX-A:1 flatly belying the 

representation in its motion of non-production. The false representation made to this Court 

comes without any prior discussion as to the alleged non-production in a meet and confer 

preceding the filing ofthe motion, thus violating, yet again, Rule 3.22(g).1 

1 We note that this is the second instance in which Complaint Counsel has filed a motion 

pn:t,;ipituusly without the tequisite meet and cuufer in viulatiuu of Rule 3.22(g). See ECM's 

Opposition to Compl. Counsel's Motion to Place Discovery Motions on the Public Docket (Jan. 

9, 2014) wherein we explain the first such instance. 

2 

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PUBLIC DOCUMENT 

REDACTED 

Next, Complaint Counsel admits that it "withdrew" its Document Request No. 13 on 

January 14, 2014. See Compl. Mot. at 2. Complaint Counsel do not tell the Court the material 

fact that Request No. 13 was the only one for which response would otherwise now be due that 

called for bulk production ofECM's customer correspondence. See Compl. Exh. CCX-A: 1 

(copy of Complaint Counsel's document demand). Complaint Counsel's knee-jerk filing of its 

motion to compel is inept because it lacks the necessary factual predicate ofthe pendency of 

Request No. 13. To be sure, Complaint Counsel served additional document requests on January 

15, 2014, but under Rule 3.37(b) ECM's response to those requests is not due until Monday, 

February 17. See Exh. RX-D. 

Respondent timely responded on December 27 pursuant to Rule 3.37(b) to the 

aforementioned Complaint Counsel document demands ofNovember 27,2013. See Exh. RX-F 

(ECM response). Complaint Counsel falsely pleads to this Court that "[a]s of [Jan. 23, 2014], 

ECM's response is nearly a month late ... " Compl. Mot. at 1 (citing Rule 3.38(b)); see also Rule 

3.37(b). Rule 3.37(b) requires a "response" within 30 days, which ECM timely served. Therein, 

ECM objected to the scope of Complaint Counsel's discovery requests, including the only 

request (Document Request No. 13) that sought ECM's customer correspondence. In Request 

No. 13, Complaint Counsel sought without limit as to time and scope "all communications with 

customers, distributors, potential customers, or potential distributors regarding ECM Additives." 

!d. at 7. That request sought every document possessed by ECM over the past 1 0-plus years. 

Over 40 days after serving its document demands on ECM, Complaint Counsel unceremoniously 

withdrew the overbroad Request No. 13, after refusing to withdraw it for the prior 39 

consecutive days. See Exh. RX-G, Complaint Counsel's Jan. 9, 2014 Email ("[w]e stand by our 

position that we are entitled to all of the underlying communications with potential 

3 
PUBLIC DOCUMENT 

REDACTED 

customers ... "). It thereby removed the only request to ECM otherwise due for customer 

correspondence, mooting the necessary foundation for the instant motion. 

In addition, hypocrisy belies Complaint Counsel's argument of undue delay. On 

December 3, ECM served Complaint Counsel with document production requests. Thirty days 

later, on January 2, Complaint Counsel served ECM with a written "response" to those requests 

along with an initial document production (just as ECM has done), see Exh. RX-I. Complaint 

Counsel later served the vast majority of its responsive documents to ECM on January 13.2 

Apparently Complaint Counsel believes ECM must abide by a 30 day timetable for production 

(rather than response) that neither Rule 3 .37(b) nor its own practice dictates. 

Moreover, Complaint Counsel conveniently omits the fact that ECM explained to 

Complaint Counsel that customer discovery was premature until his Honor ruled on ECM's thenpending motion for a protective order, filed December 13, which motion sought to impose limits 

on customer disclosures. Contrary to their protestations, Complaint Counsel has made no 

"concessions ... to entice ECM to produce" discovery (see Compl. Mot. at 2). Rather, outside of 

Court, Complaint Counsel has adamantly insisted that ECM produce all of its files regardless of 

relevance or privileged content. Complaint Counsel has not agreed to limit the universe of 

potentially responsive documents, as it promised this Court it would. See Jan. I 0, 2014 Order, at 

7, 8 (Complaint Counsel would "limit [the discovery] in a manner that conserves both parties 

resources" and "reduce the number of responsive materials"). Indeed, every time ECM has 

asked Complaint Counsel to honor that pledge to the Court, Complaint Counsel has refused. 

2 Despite counsel's implication, nothing in Rule 3.37(b) requires a party to produce all 

responsive documents within 30 days and, in fact, the rule expressly contemplates that document 

production or inspection will occur after an initial written response (supplied within that 30 day 

timeframe ). 

4 
PUBLIC DOCUMENT 

REDACTED 

Complaint counsel argues that it "made an extraordinary offer-to accept the Summary 

Database in native format ... in lieu of production from the email archive." Compl. Mot. at 2-3. 

In fact, Complaint Counsel insisted that ECM produce not only the complete ECM database 

summaries (to which ECM agreed!) but also all email files from January 1, 2009 forward, which 

Complaint Counsel claims must be located through massive keyword searches. See Exh. RX-G 

(Katherine Johnson Jan. 9, 2014 email). Moreover, ECM explained to Complaint Counsel that 

its database is kept in the ordinary course in Adobe PDF format, not native format. See, e.g., 

Exh. RX-G. Complaint Counsel insisted that ECM reproduce its raw data not in the format in 

which it is kept but in native format, despite the fact that Rule 3.7 expressly does not require 

Respondent to produce its files in any form other than how they are kept in the ordinary course 

of business or how ECM may conveniently produce same. 3 

ECM does not sort or organize archived email files. See Exh. RX-A, Decl. ofR. Sinclair, 

at~~ 3-5. ECM has its employees contemporaneously log all emails, facsimiles, and phone calls 

in the Microsoft Access Database summations. ld. at~~ 4-5. Although emails are referenced in 

the database summations, ECM ordinarily does not archive original emails. ld. at ~~ 5-6. ECM 

employees periodically store original emails in master PDF files, which files usually contain 

several days of communications all comingled. !d. at ~~ 6-7. Those master PDF files are then 

uploaded periodically to server folders for long-term storage. ld. ~t ~ 8. To procure all 

responsive email files under Complaint Counsel's overbroad requests, ECM must search each 

global PDF fur the specific file named in the database summations, and then manually extract 

specific pages from the large files. !d. at ~ 10. That process is time consuming and laborious, 

3 .ECM notes that Rule 3.7(c)(ii) & (iii) do not require ECM to specially format 

information for Complaint Counsel, or produce the information in more than one format. 

5 
PUBLIC DOCUMENT 

REDACTED 

and it is entirely unnecessary because the contemporaneously recorded database summations to 

be supplied to Complaint Counsel on January 31 and March 15 subsume the substantive email, 

facsimile, and phone content for every customer. !d. at ~~ 4-6. ECM implemented its database 

summation system to do that very thing (to eliminate the need for the PDF files). The 

summations remain the best contemporaneous source of all interactions (email, facsimile and 

phone, not just email) had with every customer every day. To accommodate Complaint 

Counsel's additional demand for all emails, ECM simply asked Complaint Counsel to perform 

one simple function: Identify relevant emails from the database summations and ECM would 

then retrieve those specific ones, if available. 

On January 31, ECM will provide Complaint Counsel with over half of ECM' s 

contemporaneous database summations and by March 15 with all of the rest of them, dating from 

January 1, 2009 to the present. ECM has been gathering and preparing that data for weeks. 

ECM has already provided Complaint Counsel with detailed notations concerning customer 

contacts with all of its prospective customers. See, e.g., Exh. RX-E (excerpt of database 

production). 

Finally, Complaint Counsel misrepresents the content of meetings with ECM counsel. 

Complaint Counsel states "ECM would not necessarily produce any underlying documents" and 

"ECM had not yet searched for responsive scientific and technical documents." See CompL 

Mot. at 4. To the contrary, ECM has repeatedly offered to provide relevant emails but has asked 

Complaint Counsel to select specific relevant ernails frnm lhe dHtl-tbHse surnrnHiions or lo Hsk for 

them based on Complaint Counsel's selection of a subset of customers (a limitation it pledged to 

this Court it would accept, as quoted by this Coures Order, see Jan. 10 Order at 8, but has 

refused to accept out of court). See Decl. ofArhangelsky, Exh. ~X-B, at~ 3. Complaint 

6 
PUBLIC DOCUMENT 

REDACTED 

Counsel has not explained why, despite soon having ECM's entire summation database of 

emails, facsimiles, and phone calls, they cannot agree to any reasonable method to honor the 

pledge Complaint Counsel made to this Court to ease the production burden. 

ARGUMENT 

The information sought is overbroad, not reasonably calculated to lead to relevant 

information, and not critical to the case. Complaint Counsel does not inform the Court that it has 

"demanded" nearly every document ECM possesses, without regard to privilege or to whether it 

leads to the adduction of relevant evidence. Complaint Counsel's requests are intended to be 

unbridled fishing expeditions, designed to inundate ECM with discovery expense and burden, 

turning discovery from a search for truth into a means to impose unjustifiable financial burden 

on a party opponent. See United States v. Kellogg Brown & Root Servs., Inc., 284 F.R.D. 22, 37 

(D.D.C. 2012) ("although Courts should read 'relevance' broadly, they should not endorse 

'fishing expeditions,' discovery abuse and inordinate expense involved in overbroad and farranging discovery requests") (collecting cases). "Courts ... frequently deny discovery when the 

party requests voluminous discovery where only a small fraction ... may be relevant." !d. FTC 

Rule 331 (c)(2) specifically requires limitations on discovery where the information sought is 

"unreasonably cumulative or duplicative" or the "burden and expense of the proposed discovery 

on a party ... outweigh its likely benefit." See 16 C.F .R. § 3.31 ( c )(2)(i), (ii). ECM has 

committed to produce every one of its database summations of all email, facsimile and phone 

interactions with every one of its (;ustomers from January 1, 2009 forward, a trove of information 

that virtually no other company in any FTC proceedings has produced or has had the 

wherewithal to produce (indeed, it is remarkable that this smaH company instituted such a system 

7 
PUBLIC DOCUMENT 

REDACTED 

of contemporaneous recordation nearly from its inception). Moreover, ECM has committed to 

produce individual emails referenced therein upon Complaint Counsel's reasonable effort to 

identify specific relevant emails, but Complaint Counsel refuses to cooperate and instead 

demands every email communication regardless of privilege, relevance, or burden. It does so 

while promising the opposite to this Court (that it would choose a subset of customers and 

relieve ECM of unnecessary burden). See Compl. Counsel's Jan. 7th Reply at 4. 

Finally, Complaint Counsel argues that ECM has not been fully forthcoming with 

production of"scientific and technical information." Compl. Mot. at 5. To the contrary, ECM 

provided almost every such responsive document in the pre-complaint investigation. ECM is 

searching its files for any remaining responsive information, and it intends to provide such 

information if it discovers same before the close of discovery on April 3. ECM has not withheld 

any information. 

CONCLUSION 

For the foregoing reasons, Respondent respectfully requests that his Honor deny 

Complaint Counsel's Motion to Compel. 

DATED this 31th day of January 2014. 

8 

Respectfully submitted, 

Is/ Jonathan W Emard 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

REDACTED 

STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent's Counsel hereby states that the content of certain exhibits 

referenced in the foregoing Opposition contain information properly designated "confidential" 

under the standing Protective Order in this case. Accordingly, ECM submits a public version 

with the exhibit content redacted. 

DATED: January 31,2014. 

9 

Is/ Jonathan W. Emord 

Jonathan W. Emard 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
PUBLIC DOCUMENT 

REDACTED 

CERTIFICATE OF SERVICE 

I hereby certify that on February 4, 2014, I caused a true and correct copy ofthe 

foregoing to be served as follows: 

One electronic copy to the Office of the Secretary through thee-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 (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Jonathan Cohen Gcohen2@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 

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: February 4, 2014 

11 

Is/ Jonathan W. Emard 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
EXH.RX-A 

CONFIDENTIAL DOCUMENT SUBJECT TO 

PROTECTIVE ORDER 
NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Ine., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

CONFIDENTIAL 

DECLARATION OF ROBERT SINCLAIR 

J, ROBERT SINCLAIR, under penalty of perjury, hereby state as follows: 

1. . I am over the age of eighteen years and I make this affidavit on personal 

knowledge of its contents and in further support of Respondent's Opposition to Complaint 

Counsel's Motion to Compel. 

2. I am the President and Chief Executive Officer of ECM BioFilms, Inc., an Ohio 

company which was founded in 1998. As President and CEO, I have personal knowledge of 

ECM's daily operations. 

3. ECM is a small company 

As a small company, ECM has developed its own unique method for 

organizing and archiving emails, facsimiles, and phone calls with third parties. 

4. Since ECM' s founding in 1998, ECM employees have contemporaneously logged 

swnmations of every email, facsimile, and phone call had with every customer in the ordinary 

course of business through a Microsoft Access database. Each data base entry includes the name 

of the contact, the initials of the employee completing the entry, and a description of the matters 

discussed. 

1 

Exh.RX-A 
NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

5. Employees are instructed to carefully and accurately record all email, facsimiJe, 

and phone interaction with customers. ECM uses those database entries to archive, sort, and 

manage prior customer correspondence and maximize customer satisfaction. Because ECM 

itself relies on the accuracy of those entries to maintain business operations, the database entries 

closely mirror the material content of all actual communications with customers. An excerpt of 

ECM,s database reports is attached as Attachment A. 

6. ECM relies on its database summations in the ordinary course of business to 

manage all customer interactions and, so, it has kept the underlying emails. letters, facsimiles and 

other documents in an archive form only referred to when it has been felt necessary to see exact 

wording or other details not entailed in the notes. Concerning emails which make up the bulk of 

written correspondences, employees are instructed to create master PDF files which contain up to 

several days of email correspondence. Those master PDF files, which contain comingled 

infonnation. are then moved into a correspondence file folder. 

7. The master PDF files thus contain a large number of emails, including personal 

and privileged communications with counsel. 

8. Because ECM employees log the substantive infonnation in the database, ECM 

only maintains correspondence files in accessible folders for approximately 30 days. After that 

time perioct ECM generally moves its bulk files into an archive folder. 

9. ECM's server shows over 

10. To search individual archived email correspondence, ECM or its agents must 

therefore search each of the and selectively excerpt responsive 

communications from those files. 

2 

Exh.RX-A 
NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

11. To search and extract documents from a master PDF file typically requires 

between 5 and 10 minutes, depending on the volume of responsive information. Thus, to 

manually search and extract responsive documents from archived files will require over .. 

That time does not include the number of hours ECM's counsel must spend 

reviewing the responsive documents. 

12. 

-

13. 

14. ECM's attorneys assess a 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 

and correct. Executed this 28th day of January, 2014. 

k~-----

3 

E:s:b.RX-A 
Exh. RX-A:l 

ATTACHMENT 1 

CONFIDENTIAL DOCUMENT SUBJECT TO 

PROTECTIVE ORDER 
NOI'i-PUBLIC DOCUMENT 

RX-A:l ECM-FTC-000648 
NON-PUBLIC DOCUMENT 
RX-A:l 

NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

ECM-FTC-000650 
NON-PUBLIC DOCUMENT 

RX-A:l ECM-FTC-000651 
RX-A:l 

NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

ECM-FTC-000652 
RX-A:l 

NON-PUBLIC DOCUMENT 

CON.FIDENTIAL 

ECM-FTC-000653 
RX-A:l 

NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

ECM-FTC-000654 
RX-A:l 

NON-PUBLIC DOCUMENT 

CONFIDENTIAL 

ECM-FTC-000655 
NON-PUBLIC DOCUMENT 

CONFIDENTIAL 
NON-PUBLIC DOCUMENT 
EXH.RX-B 
CONFIDENTIAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter ot 

Docket No. 9358 

ECM BioFDms, Inc., 

a corporation, also dlb/a 

Eaviroplastiea IDtemational, 

CONFIDENTIAL 

Respondeat. 

DECLABATION OF PETER ABHANGELSKY IN SUPPORT OF BESPONDENJ 

ECM'S OPPOSITION TO CQMPLAINT COUNSEL•S MOTION TO COMPEL 

RESPONDENT TO PRODUCE DOCUMENTS 

In accord with 28 U.S.C. § 1746, I declare under penalty of perjury that the following is 

true and correct: 

1. I am over the age of eighteen years and I make this affidavit on personal 

knowledge of its contents and in further support of Respondent's Opposition to Complaint 

Counsel's Motion to CompeL 

2. I am employed by the law fmn Emord & Associates, P.C., which represents ECM 

BioFilms in matters before the Federal Trade Commission. I am an attorney of record in the 

above-captioned case. 

3. In a January 21, 2014 telephone call involving counsel for Respondent (Peter 

Arbangelsky. Lou Caputo. and Jonathan Elpord) and Complaint Counsel (Katherine Johnso~ 

Elisa Jillson, and Jonathan Cohen.), ECM discussed limitations it sought for document discovery 

in light of Complaint Counsel's overbroad requests: 

• ECM offered to produce its entire contemporaneously recorded email, facsimile, 

and phone customer summation database in a native format, beginning with a 

Exh.RX-B 1 
Exh.RX-B 

CONFIDENTIAL 

substantial production ofinfonnation by January 31,2014. ECM explained that 

reviewing the relevant information would take time before production could 

occur, and that prompt work would allow a substantial production by January 31, 

2014 with full production not later than 4 to 6 weeks thereafter (i.e., by no later 

than March 1 S). Tbe parties purported to agree on a start date of January 1, 2009 

for electronic discovery files. 

• ECM offered to produce email correspondence with third parties (e.g., customers) 

as part of its production, provided Complaint Counsel would limit its request for 

the archived files to a chosen subset of ECM customers after reviewing the 

information available in ECM's database notes. Because production of all email 

correspondence would include attorney-client privileged communication, work 

product wmmunication, irrelevant material and substantial labor to identify and 

retrieve all responsive emails, ECM invited Complaint Counsel to review all of 

the contemporaneous summations logged and to choose ftom them specific emails 

desired for production, thus lessening the burden. Complaint Counsel refused to 

accept any limit on email tile production. Complaint Counsel has demanded all 

emails contained in ECM's database, subject to extensive keyword searches. 

• ECM bas produced responsive scientific and technical documents in its 

production to Complaint Counsel during the pre-complaint investigation. ECM is 

reviewing all of its files to find any additional responsive scientific and technical 

documents and is committed to complete that search on or before February 28 and 

supply whatever responsive documents it has found, as it finds them. ECM 

2 

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CONFIDENTIAL 

understands that it is not required to search for and produce information that has 

already been supplied to Complaint Counsel. 

• To the extent that they exist and do not contain privileged information, ECM is 

committed to providing internal emails, if any, that are responsive to Complaint 

Counsel's requests upon their discovery with complete production by no later 

than the discovery cut..off date of April3. 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 

and correct. Executed this 28th day of January, 2014. 

Exh.RX-B 3 
Exh. RX-C 

CONFIDENTIAL DOCUMENT SUBJECT TO 

PROTECTIVE ORDER 
Exh. RX-C 
Exh. RX-D 
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 

COMPLAINT COUNSEL'S SECOND SET OF 

REQUESTS FOR PRODUCTION OF DOUMENTS 

Pursuant to Rule 3.37 of the Federal Trade Commission's Rules ofPractice for 

Adjudicative Proceedings, Complaint Counsel hereby request that ECM Biofilms, Inc. ("ECM'') 

respond to these Requests within the time prescribed by the Federal Trade Commission's Rules 

of Practice, and produce the following documents and/or tangible things for inspection and 

copying at the Federal Trade Commission, 600 Pennsylvania Avenue, NW, M-8102B, 

Washington, DC 20580, or at such time and place as maybe agreed upon by all counsel. 

INSTRUCTIONS 

1. These instructions and definitions should be construed to require responses based 

upon the information available to ECM as well as your attorneys, representatives, investigators, 

and others acting on your behalf. 

2. If you are unable to produce a document or property requested, state in writing 

why you cannot produce the document or the property and, if your inability to produce the 

document or the property is because it is not in your possession or the possession of a person 

from whom you could obtain it, state the name, address, and telephone number of any person 

you believe may have the original or a copy of any such document or property. 

3. If you object to a portion or an aspect of any Request, state the grounds of your 

objection with specificity and respond to the remainder of the Request. 

Exh. RX-D 

Page 1 of6 
4. If, in answering these Requests, you encounter any ambiguities when construing a 

request, instruction, or definition, your response shall set for the matter deemed ambiguous and 

the construction used in responding. 

5. Where a claim of privilege is asserted in responding or objecting to any discovery 

requested in these Requests and information is withheld on the basis of such assertion, you shall, 

in your response or objection, identify the nature of the privilege (including work product) which 

is being claimed. When any privilege is claimed, you shall indicate, as to the information 

requested, whether (a) any documents exist, or (b) any communications took place, and (c) also 

provide the following information for each such document in a "privileged documents log" or 

similar format: (i) the type of document; (ii) the general subject matter of the document; (iii) the 

date of the document; (iv) the author(s) of the document; (v) the addressee(s) and any other 

recipient(s) of the document; and (vi) the custodian of the document, where applicable. 

6. If the requested documents are maintained in a file, the file folder is included in 

the request for production of those documents. 

7. These Requests for Production seek documents not already produced by you 

pursuant to the FTC's letter requests. To the extent responsive documents have already been 

produced by you, you should so indicate and include the Bates Number identifying the 

documents responsive to that Request. If the document previously produced by you was wholly 

or partially redacted, please provide an unredacted copy~ or the basis for claiming privilege or 

other protection as described in Instruction No. 5. If the document includes charts or graphs, 

provide color copies of such documents. 

8. Every Request for Production herein shall be deemed a continuing Request tor 

Production, and Respondent is to supplement its answers promptly if and when you obtain 

responsive documents which add to or are in any way inconsistent with Respondent's initial 

production. 

Exh.RX-D 

Page 2 of6 

2 
DEFINITIONS 

Notwithstanding any definition below, each word, term, or phrase used in these Requests 

is intended to have the broadest meaning permitted under the FTC's Rules. 

1. "All" means and includes "any and all." 

2. "Advertisement" means any written or verbal statement, illustration, or depiction 

that is designed to effect a sale or create interest in the purchasing of goods or services, whether 

it appears on the Internet, in email, on packaging, in a brochure, newspaper, magazine, pamphlet, 

Powerpoint Presentation, leaflet, webinar, circular, mailer, book insert, free standing insert, 

letter, catalog, poster, chart, billboard, point of purchase material (including, but not limited to, a 

display or an item worn by salespeople), fact sheet, film, slide, radio, broadcast or cable 

television, audio program transmitted over a telephone system, program-length commercial, or in 

any other medium. 

3. "And" and "or" shall be construed either disjunctively or conjunctively as 

necessary to bring within the scope of the request any information that might otherwise be 

construed to be outside its scope. 

4. "Any'' meails and includes "any and all." 

5. "ASTM Documents" include any Document: (a) prepared for ASTM (American 

Society of Testing and Materials), for any ASTM committee, or for any ASTM vote, election, or 

decision-making process (including, without limitation, standard-setting); (b) regarding any 

ASTM committee, or any AST~ vote, election, or decision-making process (including, without 

limitation, standard-setting); (c) prepared for dissemination to ASTM, ASTM members, or the 

representatives of ASTM members; or (d) drafts or versions of any of the foregoing. 

6. "Document" or "documents" are synonymous in meaning and equal in scope to 

the usage of the terms as defined by 16 C.P.R. 3.34(b), and includes, without limitation, any 

written material, whether typed, handwritten, printed or otherwise, and whether in draft or final 

form, of any kind or nature, or any photograph, photostat, microfilm or other reproduction 

thereof, including, wi,thout limitation, each note, memorandum, letter, release, article, report, 

Exh.RX-D 

Page 3 of6 

3 
prospectus, memorandum of any telephone or in-person conversation, any financial statement, 

analysis, drawing, graph, chart, account, book, notebook, draft, summary, diary, transcript, 

computer database, computer printout, or other computer-generated matter, contract or order, 

laboratory report, patent, trademark or copyright, and other data compilations from which 

information can be obtained. Electronic mail is included within the definition. A draft or nonidentical copy is a separate document. 

7. "ECM" shall mean ECM Biofilms, Inc., including without limitation, its agents, 

employees, officers, or anyone else acting on its behalf. 

8. "Regarding'' means and includes affecting, concerning, constituting, dealing with, 

describing, embodying, evidencing,, identifYing, involving, providing a basis for, reflecting, 

relating to, respecting, stating, or in any manner whatsoever pertaining to that subject. 

REQUESTS 

Request! 

Provide all Documents that constitute drafts or different versions of any logo or 

certificate that ECM provided to any customer or considered providing to any customer. For 

purposes of this request, ECM need not produce drafts or versions in which the only difference 

between the responsive document and a document ECM has already produced is the customer's 

name or the document's date. 

Request2 

Provide all Documents that constitute drafts or different versions of any presentation, 

Advertisement, or marketing material of any sort that ECM provided to any customer or 

considered providing to any customer. For purposes of this request, ECM need not produce 

drafts or versions in which the only difference between the responsive document and a document 

ECM has already produced is the customer's name or the document's date. 

Request :l 

Provide all ASTM Documents including, without limitation, drafts or versions of such 

Documents. 

Exh.RX-D 

Page 4 of6 

4 
Dated: January 15,2014 

Exh.RX-D 

Page 5 of6 

5 

Respectfully submitted, 

e e Johnson (202) 326-2185 

an Cohen (202) 326-2551 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop M-8102B 

Washington, DC 20580 
CERTIFICATE OF SERVICE 

I hereby certify that on January 15, 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 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 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@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. 

Exh.RX-D 

Page 6 of6 

6 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2551 

Facsimile: (202) 326-2558 

Email: jcohen2@ftc.gov 

! 

I' 
Exh. RX-E 

CONFIDENTIAL DOCUMENT SUBJECT TO 

PROTECTIVE ORDER 
Page 1 of 10 
Exh. RX-E 

Page 2 of 10 

ECM-FTC-000649 
Exh. RX-E 

Page 3 of 10 

ECM-FTC-000650 
Exh. RX-E 

Page 4 of 10 

ECM-FTC-000651 
Exh. RX-E 

Page 5 of 10 

ECM-FTC-000652 
Exh. RX-E 

Page 6 of 10 

ECM-FTC-000653 
Exh. RX-E 

Page 7 of 10 

ECM-FTC-000654 
Exh. RX-E 

Page 8 of 10 

ECM-FTC-000655 
Exh. RX-R 

Page 9 of 10 

ECM-FTC-000656 
Page 10 of 10 
Exh. RX-F 
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 

RESPONDENT'S RESPONSES AND OBJECTIONS TO 

COMPLAINT COUNSEL'S FIRST SET OF REQUESTS FOR PRODUCTION OF 

DOCUMENTS 

Pursuant to the Federal Trade Commission's Rules of Practice ("Rules"), 16 

C.F.R. 3.37, Respondent ECM BioFilms, Inc. ("ECM") submits its Responses and 

Objections to Complaint Counsel's First Set of Requests for Production of Documents 

("Requests"). 

ECM objects generally to the proposed breadth and scope of Complaint Counsel's 

Requests. They are overbroad and overly burdensome in that they seek materials and 

information that are cumulative, redundant, and irrelevant. Further, they seek 

inf01111ation at issue in ECM's Motion for Protective Order, which is currently bcfor~,; th~.; 

ALJ. ECM maintains a small workforce and does not have the resources to discover, 

review, and categorize such massive volumes of information within the response time 

requested. Notwithstanding, ECM recognizes the need for disclosure on topics under the 

Rules and endeavors in good faith to comply. To that end, ECM discloses Attachment A 

with this Response. 

Exh. RX-F 

Page 1 of28 

1 
ECM has consistently explained that its sales are generally made through personal 

communication. Attachment A contains summaries of interactions between ECM and 

prospective customers with which ECM has not entered a confidentiality agreement from 

January 1, 2006 -December 31, 2011. Attachment A includes 8,540 separate notes. 

There are approximately 142, 078 other such entries total in ECM's records. Compiling 

the entries in Attachment A and reviewing them consumed significant employee time at 

the sacrifice of work for ECM. Attachment A is responsive to nearly all areas of 

Complaint Counsel's Request. ECM continues to search its records for additional 

responsive data and will provide it under reasonable circumstances soon after it is 

discovered. ECM proposes that Complaint Counsel review Attachment A, ascertain 

which individual records it finds relevant and about which they desire further information 

and/or documentation. Complaint Counsel can then describe precisely those records 

about which they seek more information. ECM will then proceed to discover and 

disclose the responsive documents and information to Complaint Counsel. 

GENERAL OBJECTIONS 

1. ECM objects to Complaint Counsel's Requests to the extent that they call 

for information, materials, and documents protected from disclosure pursuant to sections 

3.3l{c)(2)-(4) ofthe Rules. 

2. ECM objects to Complaint Counsel's Requests to the extent that they call 

for information, materials, and/or documents protected from disclosure by the attorneyclient privilege, the work product doctrine, or any other applicable privilege. 

3. ECM objects to the Instructions and Definitions to the extent they purport 

to impose greater obligations on ECM than those imposed by the Rules, including, but 

Exh. RX-F 

Page2 of28 

2 

------··------~-
not limited to Rule 3.31 and/or Rule 3.37. ECM will provide answers and responses 

consistent with the Rules when the Instructions and Definitions deviate from the Rules. 

4. ECM objects to Complaint Counsel's Requests to the extent they call for 

disclosure of its trade secrets and/or confidential and proprietary commercial and 

financial information. ECM will provide responses containing its confidential and 

proprietary information subject to the terms of the Protective Order Governing Discovery 

Material issued by Judge Chappell on October 22, 2013. 

5. ECM objects to Complaint Counsel's Requests to the extent they are 

overly broad, vague, ambiguous, unduly burdensome, oppressive, and are not reasonably 

calculated to lead to the discovery of admissible evidence. 

6. ECM objects to Complaint Counsel's Requests to the extent that they call 

for information previously provided to Complaint Counsel or information that may be 

less onerously obtained through other means. 

7. ECM objects to Complaint Counsel's Requests to the extent they are not 

relevant to the pending proceeding against ECM. 

8. ECM reserves all of its evidentiary objections or other objections to the 

introduction or use of any response at any hearing in this action and does not, by any 

response to any Request, waive any objections to that Request, stated or unstated. 

9. ECM does not, by its response to any Request, admit to the authenticity or 

validity of any document. 

Exh. RX-F 

Page 3 of28 

3 
10. ECM objects to Complaint Counsel's Requests on the ground that ECM's 

discovery and analysis are ongoing, and ECM reserves the right to assert additional 

objections, as appropriate, and to amend or supplement these objections and responses as 

appropriate. 

11. ECM's objections and responses are based on its understanding or 

interpretation of Complaint Counsel's Requests and the language used therein. To the 

extent Complaint Counsel challenges those interpretations, or to the extent ECM derives 

a different understanding or interpretation of the language used, ECM reserves the right 

to supplement any of these objections or responses accordingly. 

12. ECM objects to Complaint Counsel's Requests to the extent that such 

inquiries seek production of information, materials, and documents precluded from 

disclosure under Rule 3.31A(e), including information derived from consulting experts. 

Similarly, ECM objects to the Requests to the extent they seek premature disclosure of 

expert discovery. Consistent with Rules 3.31 and 3.31 A, and the standing Protective 

Order in this case, ECM will provide such information at an appropriate time. 

13. ECM objects to the definition of the term "plastic" to the extent that 

Complaint Counsel seeks to limit the universe of scientific facts, products, and polymers, 

in any way that narrows the generally accepted scientific definition or understanding of 

the term. 

14. ECM objects to these docwmml re4uesls lu the exlenllhey are 4ualified 

with words such as "all" or other similar expansive language, because such language 

causes the requests to be overly broad and global, vague and ambiguous, and unduly 

burdensome. 

Exh. RX-F 

Page 4 of28 

4 
15. ECM objects to these Requests due to their use of the inherently 

ambiguous phrases "within a reasonably short period of time after customary disposal" 

and "within a reasonably short period of time within a landfill" which render the requests 

including the phrases incomprehensible. ECM objects to these Requests due to their use 

of the term "biodegradable" and other similar and/or related terms. Such terms are vague 

and ambiguous. This includes, but is not limited to, the fictive notion that consumers 

interpret the term "biodegradable" to mean that a product must completely break down 

within a one-year period. 

The foregoing general objections shall apply to each of the following Requests 

whether or not restated in the response to any particular response. 

SPECIFIC OBJECTIONS AND RESPONSES 

REQUEST NO. 1 

Provide all documents regarding the efficacy of the ECM Additive in initiating, causing, 

enabling, promoting, or enhancing the biodegradation of plastics containing the ECM 

Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantiaHy outweighs any benefit. .ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh.RX-F 

Page 5 of28 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-0000 I 7 

• ECM-FTC-000022- ECM-FTC-000061 

5 
• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231 - ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484 - ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488 - ECM-FTC-000490 

• ECM-FTC-000492 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.2 

Provide all documents regarding whether or how to market ECM Additives as capable of 

initiating, promoting, causing, enhancing, or enabling the biodegradation of plastic:. 

Exh.RX-F 

Page 6 of28 

6 
RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh. RX-F 

Page 7 of28 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000059 

• ECM-FTC-000022- ECM-FTC-00006 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000323 - ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339 - ECM-FTC-000351 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481 - ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488 - ECM-FTC-000490 

• ECM-FTC-000493- ECM-FTC-000496 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

7 
ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.3 

Provide all documents regarding the duration of time for complete biodegradation of a 

plastic product containing the ECM Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh. RX-F 

Page 8 of28 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-0000 17 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081 - ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

8 
• ECM-FTC-000231 - ECM-FTC-000241 

• ECM-FTC-000244 - ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

• ECM-FTC-000390- ECM-FTC-00040 

• ECM-FTC-000402 - ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.4 

Provide all documents regarding whether and how plastics containing ECM Additives 

will biodegrade in different disposal conditions. 

Exh. RX-F 

Page 9 of28 

9 
RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-0000 17 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484 - ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is oneoine; ECM will produce any additional relevant~ responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

Exh. RX-F 

Page 10 of28 

10 
parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.5 

Provide all documents regarding ASTM D5511 or ASTM D5526. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh. RX-F 

Page 11 of28 

ECM has previously provided the following documents: 

• ECM-FTC-0000 15 

• ECM-FTC-000017 

• ECM-FTC-000058- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231 - ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000323- ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000483 

• ECM-FTC-000487 

• ECM-FTC-000497 - ECM-FTC-000509 

11 
Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. 

REQUEST NO.6 

Provide all documents regarding any express or implied claims that ECM Additives 

initiate, cause, enable, promote, or enhance the biodegradation of plastics containing the 

ECM Additive, and specifically including the following representations: 

a. ECM Plastics will completely break down and decompose into elements 

found in nature within a reasonably short period of time after customary 

disposal. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because the phrase "within a reasonably short period of time after customary 

disposal" is so ambiguous as to be incomprehensible; it therefore renders the request 

incompetent. Subject to those foregoing general and specific objections, ECM responds 

as follows. 

ECM has previously provided the following documents: 

Exh.RX-F 

Page 12 of28 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-fTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-fTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

12 
• ECM-FTC-000385- ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488 - ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject of ECM' s 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

b. ECM Plastics will completely break down and decompose into elements 

found in nature within a reasonably short period of time in landfilL 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in fulL ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because the phrase "within a reasonably short period of time in landfill" is 

Exh.RX-F 

Page 13 of28 

13 
so ambiguous as to be incomprehensible; it therefore renders the request incompetent. 

Subject to those foregoing general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

• ECM-FTC-000385- ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

p:1rties ifl1ciciitionl11 ciocuments are ciiscovereci. To the extent ECM ciiscovers the 

existence of relevant documents responsive to this Request that are the subject of ECM' s 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

Kxh. RX-F 

Page 14 of28 

---------~---~-----------

14 
disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

c. ECM Plastics will completely break down and decompose into elements 

found in nature within nine months to five years in a landfill. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh.RX-F 

Page 15 of28 

ECM has previously provided the following documents: 

• ECM-FTC-0000 15 

• ECM-FTC-0000 16 

• ECM-FTC-000017 

• ECM-FTC-000022 - ECM-FTC-000061 

• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000334 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• .ECM-Fl'C-000481- .ECM-FTC-0004~2 

• ECM-FTC-000483 

• ECM-FTC-000484 - ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

15 
ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

d. ECM Plastics will completely break down and decompose into elements 

found in nature within one year in a landfill. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged documents responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that arc the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

Exh. RX-F 

Page 16 of28 

16 
e. ECM Plastics have been shown to perform as stated in (a) through (d) under 

various scientific tests including, but not limited to, ASTM D5511. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000058- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000483 

• ECM-FTC-000486 

• ECM-FTC-000497- ECM-FTC-000509 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privikged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for ::t Protective Order, filed on December 13, 2013, ECM objects to the 

Exh. RX-F 

Page 17 of28 

17 
disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.7 

Provide all documents that tend to call into question or disprove any express or implied 

claims that ECM Additives initiate, cause, enable, promote, or enhance the 

biodegradation of plastics containing the ECM Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. There are no documents that 

"call into question or disprove any express or implied claims" referenced in this request. 

ECM has provided responsive documents, and such documents speak for 

themselves concerning their nature or content. ECM will provide additional responsive 

documents at a time and place mutually convenient to the parties, and consistent with the 

ALJ's ruling on ECM's pending motion for a protective order. 

Discovery is ongoing; RCM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

Exh.RX-F 

Page 18 of28 

18 
REQUEST NO.8 

Provide all documents regarding any tests conducted on ECM Additives or plastics 

containing ECM Additives purporting to show biodegradability ofECM Additives or 

plastics containing ECM Additives. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-0000 15 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Exh. RX-F 

Page 19 of28 

19 
Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.9 

Provide all copies of each different ECM advertisement (including those disseminated to 

or by ECM distributors) that represents, expressly or by implication, that ECM Additives 

initiate, cause, enable, promote, or enhance biodegradation of plastic. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM objects to the request for "advertisements" as that term calls 

for a legal conclusion the sufficiency of which is in controversy. ECM further objects to 

the extent that such Request would impose a burden and expense that substantially 

outweighs any benefit. ECM objects to the extent that such request implies that ECM 

possesses or exerts any degree of control over such advertisements displayed, produced, 

or endorsed by third-party distributors. ECM objects to this Request because it is vague, 

ambiguous, and overbroad. Subject to those foregoing general and specific objections, 

ECM responds as follows: ECM has provided responsive documents, and such 

documents speak for themselves concerning their nature or content. ECM will provide 

additional responsive documents at a time and place mutually convenient to the parties, 

and consistent with a final and binding Order on ECM's pending motion for a protective 

cml~r. 

REQUEST NO. 10 

Provide copies of any materials relating to any ECM Additive made available to any 

ECM Additive distributor or customer, including, but not limited to, packaging, clipart, 

Exh.RX-F 

Page20 of28 

20 
seals, logos, other marketing materials, instructions or suggestions regarding making 

marketing claims, or instructions for the use or marketing of the ECM Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as if 

set forth here in full. EGM further objects to the extent that such Request would impose a 

burden and expense that substantially outweighs any benefit. ECM objects to this 

Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000001- ECM-FTC-000012 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000021 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000062 - ECM-FTC-000068 

• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000243 

• ECM-FTC-000244 - ECM-FTC-000322 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402 - ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-OOOIJ81J- ECM-FTC-000·185 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

21 

Exh. RX-F 

Page21 of28 

~~ ---~-----
Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 11 

Provide all documents, whether prepared by or for ECM or any other entity, including 

any advertising agency, regarding consumer perception, comprehension, or recall 

(including, but not limited to, copy tests, marketing or consumer surveys and reports, 

penetration tests, recall tests, audience reaction tests, and communication tests) of: 

a. Any advertisement, whether disseminated or not, that represents, expressly or 

by implication, that ECM Additives initiate, promote, or enhance 

biodegradation of plastic; and/or 

b. Biodegradability in general. 

RESPONSE: Discovery is ongoing; ECM will produce any additional relevant, 

responsive, non-privikgcd document responsive to this Request at a time mutually 

convenient to the parties if additional documents are discovered. To the extent RCM 

discovers the existence of relevant documents responsive to this Request that are the 

subject ofECM's Motion for a Protective Order, filed on December 13,2013, ECM 

objects to the disclosure of such documents. ECM will not disclose such documents 

unless and until required by a final and binding Order. 

Exh.RX-F 

Page 22 of28 

22 
ECM objects to such Request to the extent that it seeks production of information, 

materials, and documents precluded from disclosure under Rule 3.31A(e), including 

information derived from consulting experts. Similarly, ECM objects to the Requests to 

the extent they seek premature disclosure of expert discovery. Consistent with Rules 

3.31 and 3.31A, and the standing Protective Order in this case, ECM will provide such 

information at an appropriate time. 

REQUEST NO. 12 

Provide all documents that support or call into question your contention that your 

customers or distributors are sophisticated purchasers. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh. RX-F 

Page 23 of28 

ECM has previously provided the following documents: 

• ECM-FTC-0000 15 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000062- ECM-FTC-000068 

• FCM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000243 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000323- ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339- ECM-:FTC-000351 

• ECM-FTC-000352- ECM-FTC-000355 

• ECM-FTC-000356- ECM-FTC-000361 

23 
• ECM-FTC-000363- ECM-FTC-000380 

• ECM-FTC-000385- ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484 - ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

• ECM-FTC-000493- ECM-FTC-000496 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 13 

Provide all communications with customers, distributors, potential customers, or potential 

distributors regarding ECM Additives. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in fulL ECM objects to disclosure of any such documents that would fall 

outside the limitations that ECM requested in its Motion for a Protective Order, filed on 

Exh.RX-F 

Page24 of28 

24 
December 13, 2013. ECM further objects to the Request because it is overly 

burdensome, and would impose an expense that substantially outweighs any benefit. 

ECM objects to the extent that such Request implies that ECM possesses or exerts any 

degree of control over such customers, distributors, potential customers, or potential 

distributors. ECM objects to this Request because it is vague, ambiguous, and overbroad. 

Subject to those foregoing general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-0000 17 

• ECM-FTC-000018- ECM-FTC-000021 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000243 

• ECM-FTC-000323- ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

• ECM-FTC-000352- ECM-FTC-000355 

• ECM-FTC-000356- ECM-FTC-000361 

• ECM-FTC-000363- ECM-FTC-000380 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484 - ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-0000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000493 - ECM-FTC-000496 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Exh. RX-F 

Page 25 of28 

25 
Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 14 

Provide all documents regarding your strategy for selling the ECM Additive to customers 

or distributors, including any documents used for verbal sales communications or in 

preparation for verbal sales communications. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

Exh. RX-F 

Page 26 of28 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000021 

• ECM-PTC-000022- ECM-FTC-000061 

• ECM-FTC-000062- ECM-FTC-000068 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

26 
• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

DATED this 27th day ofDecember 2013 

Exh. RX-F 

Page27 of28 

27 

Respectfully submitted, 

Is/ Jonathan W. Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Tdephune: 202-466-693 7 

Facsimile: 202-466-6938 

Email: kmuru.(l:t)emurd.com 
CERTIFICATE OF SERVICE 

I hereby certify that on December 27, 2013, I caused a true and correct copy of 

the paper original of the foregoing RESPONDENT'S RESPONSES AND 

OBJECTIONS TO COMPLAINT COUNSEL'S FIRST REQUEST FOR 

PRODUCTION OF DOCUMENTS to be served as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov 

Jonathan Cohen 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

Email: icohen2@ftc.gov 

Elisa Jillson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: ejillson@Jtc.gov 

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. 

Exh. RX-F 

Page28 of28 

28 

Is/ Jonathan W. Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
Exh. RX-G:l 

-----------------
Peter Arhangelsky 

From: 

Sent: 

To: 

Cc: 

Subject: 

Peter, 

Johnson, Katherine <kjohnson3@ftc.gov> 

Monday, January 13, 201411:08AM 

Peter Arhangelsky 

Jonathan Emard; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

RE: ECM Response to FTC First Set of Requests for Production of Documents 

First, we will negotiate search terms to reduce the number of responsive materials, but we want to begin that 

process expeditiously. We recognize your right to "exhaust all avenues of review" with respect to the Court's decision, 

but we view attempts to seek further review as frivolous, and we want to ensure that the process moves quickly once 

"all avenues of review" are exhausted. Our proposal is simple: 

we will provide you with a list of 50 search terms or phrases, and you'll produce the responsive documents in 

native form; and 

we will reach a stipulation regarding the evidentiary ramifications of your limited production. 

With respect to the stipulation, it's necessary because we're agreeing to accept vastly less than what Respondent is 

actually obligated to produce, and it's virtually certain that we'll never see a significant amount of highly probative 

information. This is a big "win" for your client, but precisely because we'll have incomplete information, there are a lot 

of potential evidentiary objections that we can't fairly meet because we won't have the necessary 

documents. Specifically: we'll need you to stipulate: (1} to the authenticity of your production; (2} that you will not 

object to the admissibility of any portion of your production on "completeness," "best evidence" or other similar 

grounds that we could correct if we had everything we're entitled to; and (3) that nothing in your production constitutes 

inadmissible hearsay (again, because we won't have a complete production, we'll be impaired in our ability to admit 

statements as adoptive admissions or under hearsay exceptions that require context that we may lack). All of 

Respondent's other objections would be expressly preserved (including, for instance, Respondent's right to object to the 

admissibility of its production, or portions thereof, on relevance grounds). 

Second, the above proposal should limit Respondent's costs. However, we are not responsible for 

Respondent's odd decision to store documents in a manner that makes them atypically difficult to search and 

retrieve. If you're right that Respondent's poor document management processes Insulate It from discovery, then no 

company facing likely litigation would have much incentive to maintain information in an accessible manner. In short, 

the fact that Respondent made it unusually difficult to search and access its own materials isn't relevant to what 

Kespondent is obligated to produce. 

Third, with respect to the Microsoft Access issue, there should be no dispute here. Respondent is obligated to 

produce information in the manner it stores that information. We don't doubt your current claim that Microsoft Access 

"generates reports in PDF format," but that's not what Lou told us before. Previously, Lou represented that Respondent 

"ordinarily maintained" its information in PDF- which isn't the same thing. More important, you're incorrect that "the 

content of those [PDF] documents does not differ in any respect to the information contained within the database." As 

you know, the database information (native files) contain metadata, whereas your PDF production to us did not. And 

most Important, the giant LWU-page POl- you sent us is unwieldy and difficult tor us to use, whereas we can sort and 

search through Microsoft Access data easily. We understand that you've requested that documents be exchanged in 

PDF, and we have converted (and will convert} our production to PDF for you at your request, but we don't understand 

why you cannot provide us with the Microsoft Access data Respondent actually has. 

We would like to discuss these issues at the meet and confer tomorrow at 4 p.m. 

Katherine 

Exh. RX-G:l 

Page 1 of6 

1 
Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 028 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: .. kjohnson3@ftc.gov 

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com] 

Sent: Friday, January 10, 2014 4:35PM 

To: Johnson, Katherine 

Cc: Jonathan Emard; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Katherine, 

I respond here to your email from yesterday and Jonathan's email from January 9th at 2:24pm Eastern, both concerning 

electronic discovery. We have reviewed the AU's Order issued today, and we intend to exhaust all avenues of review 

with respect to certain portions ofthat decision. However, as applicable here, Judge Chappell predicated part of his 

ruling on your willingness to "negotiate search terms to reduce the number of responsive materials ... " See AU Opp. at 

8. The information I provide below should further that purpose. 

As for the Microsoft Access database, the program generates reports in PDF format. We were provided with the PDF 

reports, and those are what we disclosed. Because the PDF files are generated directly from the database program (e.g., 

printed to PDF), the content of those documents does not differ in any respect to the information contained within the 

database. 

The number 142,078 reflects the total number of entries in ECM's database. For our initial production, ECM screened its 

notes by selecting only prospective customers. The entries were not screened or retrieved using keywords and, so, 

those notes reflect the sum total of all material correspondence reported in the database for the entities selected. The 

balance ofthe 142,078 entries includes information concerning all of ECM's former customers, inactive customers, and 

active customers. ECM can provide those records, subject to some agreement that will limit the breadth of information 

as per the Judge's ruling today. We assume from your representations before the AU that you will honor your offer to 

iimit the scope of discovery and, to the extent that assumption is incorrect, we intend to file a motion for 

reconsideration. 

As 1 mentioned in my prior email, ECM does not sort its archived email files. ECM employees preserve their emails by 

printing into PDF files at the end of each day (or occasionally after several days). Each single archived PDF thus contains 

information among various contacts and subjects, i.e., a day's worth of unsorted information. Employees do this for 

inbound and outbound messages separately and, so, each day results in two archived files. To provide you with the 

original email files referenced in our recent 1,200 page disclosure, someone must search each archived PDF file (which 

number in the thousands}, and then manually extract every responsive page from the larger PDr documents which also 

contain unrelated messages. We can generally estimate that of the 142,078 database notations (including files already 

produced), at least two-thirds to three-quarters of those entries will correlate with email files. So take the 8,540 notes 

from our recent production as an example. Even if only 5,600 of those notes represent email correspondence, ECM 

would need to manually search each master PDF file from the days in question to find and then extract each of the 5,600 

specific emails. The dutes involved spanned from 2006 and 2011, which might therefore involve thousanrlc; of r~rrhivPrl 

master PDF files. If these discovery demands continue with ECM's other customers, ECM would be required to search 

for and manually extract perhaps over one hundred thousand emails. 

Exh. RX-G:l 

Page 2 of6 

2 
That task alone could require weeks to complete at substantial cost to ECM, even with a team of staffers assigned. As it 

stands, ECM's Rule 3.31{c)(2) 

specifically gua s against t arms m t s type massive discovery urden, part arly en the "burden and 

expense of the proposed discovery on a party ... outweigh its likely benefit." That seems quite applicable here, given 

that you can examine the notations, and maybe compare those notes with a sampling of actual email files to verify 

completeness. To be clear, ECM is not stating that it refuses to provide original email files or attachments. However 

because the discovery burden is so substantial, ECM needs you to narrow your discovery requests within reasonable 

limits, as contemplated by the Judge's Order. For instance, ECM can extract and disclose certain files or documents that 

relate to specific issues or contacts (e.g., through global keyword inquiries). That work remains burdensome, but far less 

so than a comprehensive production of all files. 

ECM will not provide its entire archived folder for your review because those co mingled files contain highly sensitive, 

irrelevant, and privileged information, which would include documents and correspondence between attorneys and 

personal contacts. The best means to limit ECM's burden is to prepare narrow discovery requests that fit within Rules 

3.37(a) and 3.31(c)(2). In this instance, your requests fail under Rule 3.31(c)(2)(i) and (iii) because the burden on ECM is 

extraordinary when compared to the relative benefit you get from documents that only confirm the notes in ECM's 

database. 

I hope this sheds light on our concerns so that we can develop a joint resolution. Please let us know if you have any 

questions, or if you would like to discuss. 

Best, 

Peter A. Arhangelsky, Esq. I EMORD & ASSOCIATES, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 

Firm: (602) 388-8899 I Direct: (602) 334-4416 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 notify the sender and then immediately destroy the document. 

From: Johnson, Katherine [mailto:kiohnson3@ftc.gov] 

Sent: Thursday, January 09, 2014 1:02 PM 

To: Peter Arhangelsky 

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Peter: 

I appreciate the clarification that this document was not prepared for litigation, and reflects records as maintained in the 

ordinary course of ECM's business. The reason I described them as "unrepresentative" is because you informed us that 

the document contains only 8,540 separate notes out of 142,078. We have no idea how you or ECM selected the 8,540 

notes that were produced. Do these represent the complete log of all communications with all of ECM's potential 

customers during that timeframe? If not, what subset does this represent and how was it selected? 

We stand by our position that we are entitled to all of the underlying communications with potential customers, not just 

the summaries of those communications. We are not trying to increase the burden on ECM or you. One way to reduce 

the burden is for ECM to produce its entire archived database subject to a clawback agreement for privileged or 

protected documents. If there is no way to partition the archive to give us only the portion that pertains to 

prospective/non-current customers, then I think we need further discussion to understand how ECM maintains its 

archived files. 

Exh. RX-G:l 

Page 3 of6 

3 
Katherine 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 02B 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohns()n3@ftc:gov 

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com] 

Sent: Thursday, January 09, 2014 10:39 AM 

To: Johnson, Katherine 

Cc: Jonathan Emard; Jillson, Elisa; Cohen, Jonathan; 'Lou Caputo' 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Katherine, 

Preliminarily, we note that our December 27th production was an initial disclosure. As we stated in our response, we 

intend to supplement that production with responsive documents, particularly after the AU resolves the pending 

discovery dispute. The summaries we produced come from ECM's Microsoft Access database, and reflect the system by 

which ECM logs files. ECM employees are instructed to accurately input all relevant information from verbal and written 

correspondence into the database. ECM relies on those notations, not the original emails, to log activities and 

discussions with external parties. The summaries in ECM's database were therefore entered in the ordinary course of 

business. I am confused by your use of the term "unrepresentative" to describe those entries. Can you explain what 

· you meant before we reply directly on that point? For instance, if you suggest that the summaries were prepared in 

anticipation of litigation, or for litigation purposes, we can clarify that they were not. 

To the extent the original emails exist, production of all such files imposes a considerable burden. Bob Sinclair is 

essentially the only ECM employee who can perform this task. While ECM logs its correspondence in the notations we 

produced, it does not sort the original files that are ultimately archived (which are rendered unnecessary to ECM by the 

summary notations). All original email files are initially transferred to a global correspondence folder where they remain 

for a short time, and then eventually archived for backup. To produce an email referenced in the notations, someone 

must manually search all archived folders for keywords that hit on the original file. That process is incredibly time 

consuming, and would eventually yield volumes of cumulative documents (in the tens of thousands). Production of "all 

responsive documents" could therefore require weeks of Bob's time at a substantial loss for ECM. 

If anything, our initial production evidences the exceptionally overbroad nature of your discovery requests. We have 

discussed this issue with you before, to wit, the fact that your overbroad requests reach every document in ECM's 

control. You requested all documents related to "ECM Additives." Part of our pending motion for a protective order 

<>PPks to limit thP PXjli'lnsivP. ni'lturP. of your rlor.umPnt rPCJIIPsts to i'l mnnnePnhiP lf'vPI. WP hnrl horPrl thilt om rPrPnt 

production would provide you enough information to narrow your requests, balancing your need for information with 

ECM's discovery burdens. Your instant request for production oftens ofthousands of documents, regardless oftheir 

relevance, and at considerable expense to ECM, only supports our motion for a protective order. For instance, rather 

than select from a subset of the 900+ prospective customers disclosed, or a subset of documents by file type or 

keyword, you have demanded everything, including emails that have nothing to do with the core issues in 

controversy. That approach also belies any claim that you would reasonably limit discovery of ECM's existing customers 

if given complete access. 

Exh. RX-G:l 

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4 
We are happy to discuss at some point this week. Our position is that we have already sought relief from your 

document requests and, until the AU rules on this pressing issue, your requests that are governed by that motion are 

unwarranted. If, on the other hand, you can suggest limiting principles designed to reach specific information, we can 

discuss with our client the feasibility of proceeding. I see no reason why we cannot agree to narrow discovery with 

respect to the potential customers ECM just disclosed. 

Best, 

Peter A. Arhangelsky, Esq. 1 EMORD & AssociATES, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 

Firm: (602) 388-8899 I Direct: (602) 334-4416 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 has been sent to you in error. please notify the sender and then immediately destroy the document. 

From: Johnson, Katherine [mailto:kjohnson3@ftc.gov] 

Sent: Wednesday, January 08, 2014 1:45 PM 

To: 'Lou Caputo'; Peter Arhangelsky 

Cc: Jonathan Emord; Jillson, Elisa; Cohen, Jonathan 

Subject: RE: ECM Response to FTC First Set of Requests for Production of Documents 

Lou and Peter: 

After reviewing the document production ECM-FTC-000648-001859, we understand that these are summaries of 

communications between individuals at ECM and potential customers. You have requested that we select from this 

incomplete, and potentially unrepresentative set of information to "ascertain which individual records [Complaint 

Counsel] finds relevant and about which they desire further information and/or documentation." ECM must produce all 

responsive documents and make available the actual communications, not just the summaries. 

If you think this requires further discussion over the phone, please let me know what your availability is like tomorrow. 

Katherine 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 028 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnson3@ftc.gov 

From: Lou Caputo [mailto:lcaputo3@qmail.com] 

Sent: Friday, December 27, 2013 4:54PM 

To: Johnson, Katherine; Jillson, Elisa; Cohen, Jonathan 

Cc: Jonathan Emord; Peter Arhangelsky 

Subject: ECM Response to FTC First Set of Requests for Production of Documents 

Dear Katherine, 

Exh. RX-G:l 

Page 5 of6 

5 
Please find attached ECM's Responses and Objections to your First Set of Requests for Production of 

Documents. Attachment A is also included. Attachment A contains material responsive to most all of your 

requests and is described further in ECM's pleading. Attachment A is over 1200 pages. ECM continues, 

however, to search for additional materials responsive to your Requests. 

I left a voicemail with Jonathan (Cohen) earlier this morning, but have not heard back. I wanted to speak with 

him about file formatting and his concerns noted in prior emails. The files produced in Attachment A are in 

PDF, which is how ECM maintains such records in the course of its regular business. 

I will be out of the office next week, but Peter is available to discuss how best to resolve file conversion issues. 

Please let us know if you have any questions. 

Thanks, 

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 notify the sender and then immediately destroy the document. 

Exh. RX-G:l 

Page 6 of6 

6 
Exh. RX-G:2 
Peter Arhangelsky 

From: 

Sent: 

To: 

Cc: 

Subject: 

Attachments: 

Counsel, 

Cohen, Jonathan <jcohen2@ftc.gov> 

Friday, January 17, 201412:13 PM 

Peter Arhangelsky; Jonathan Emard; Lou Caputo 

Jillson, Elisa; Johnson, Katherine 

ECM: Document Requests & Other Outstanding Issues 

Complaint Counsel's Preliminary Witness List. pdf 

We served most of the document requests at issue on November 27, and your production is now three 

weeks overdue (and counting). The Court's January 10 order compelled ECM to produce its customer list- which 

you did late yesterday. But nothing in the Court's order requires us to accept vastly less than what the FTC's Rules 

entitle us to. Furthermore, nothing in the Court's order allows you to produce whatever you intend to produce 

whenever convenient for you. We're extremely concerned that the effect of your proposal will be that, whatever you 

produce, you will produce it shortly before discovery doses. Accordingly, we respectfully decline your proposal for 

the reasons articulated below, but offer our last, best accommodation, with the sincere hope that you'll accept. As I 

suspect we've already made dear, we'd obviously rather move forward quickly than have to return to the Court 

agal!l. 

With respect the specifics of your proposal: 

1. Customer Contacts- This issue is separate from whether ECM has to comply with our document requests. We 

received your customer list yesterday evening. We'll let you what subset we intend to contact after we've had an 

opportunity to review and analyze the list and, potentially, after we've had an opportunity to review and analyze 

your document production. In all events, we'll give ECM enough time to notify its customers or seek emergency 

relief from the Court before we contact any customer on the list you produced yesterday evening. Again, however, 

the customer contacts issue has nothing to do with ECM's obligation to produce its own responsive documents. 

2. Temporal Limitation- As you know, our pre-complaint investigation covers the period from January 1, 2008 

forward. In the interest of accommodation, we'll incorporate your proposed January 1, 2009limit into our final 

proposal. · 

3. Customer Correspondence- Your proposal is replete "\vith problenu;; we'll simply note that, even if an "email 

only" production was satisfactory (and it isn't), you aren't proposing to produce these documents by any particular 

time. Even if you believe that these are the only documents we're entitled to, it's still the case that they're three 

weeks overdue (with no end in sight). 

4. Scientific, Technical, & Otherwise Responsive Documents- There's some room for negotiation here; we agree 

that you don't have to produce to us anything you've produced already during the pre-complaint investigation (in 

fact, you don't even have to negotiate that, we volunteer that you don't have to re-produce anything, with respect to 

these subjects or otherwise). And keywords may be appropriate for finding responsive scientific, technical and 

other responsive documents. 

Here's our last, best offer, and a bit about why we think you should at least consider it seriously: 

(1) From the outset, accepting this offer would discharge your obligations under all outstanding document requests. 

(2) Subject to the "Enhanced Clawback" agreement described below, you give us the entire MS Access 

correspondence database (in native form) by January 24. ECM does not need to search its archives for original 

correspondence. We'll take the summaries. If you want, you can remove from the database anything you believe in 

Exh. RX-G:2 

Page 1 of3 

1 
good faith is non-responsive or privileged (in fact, you should have started this process some time ago, and maybe 

you have). 

(3) In light of the fact that we're agreeing to take only summaries, you: (a) stipulate to the authenticity of the 

documents produced; (b) waive any objection that we reasonably could have met ifECM had produced the original 

correspondence; and (c) waive any right to use any document from the archives. 

( 4) You get an "Enhanced Clawback" agreement with respect to the MS Access database. The only reason you've 

given us as to why you can't produce the database with customer communications is that it might also contain 

privileged information. Accordingly, we would agree to the following terms, in addition to whatever rights you have 

under the FTC Rules and other authority: (a) if you discover that you produced anything privileged, ECM is 

entitled to claw it back immediately (we'll delete it from the database and certify to you that we've done so); (b) if we 

discover anything that a reasonable attorney might consider privileged, we'll "claw it back" to you immediately, even 

if its reasonably debatable whether it's privileged or not (again, we'll delete it from the database and certify to you 

that we've done so); (c) the presence of an arguably privileged document in the database will not constitute a waiver 

of any sort; (d) we'll store the documents in a manner that limits access to case team members only, as opposed to 

FTC staff generally; (e) subject to applicable law, we'll destroy the database as soon as possible when this litigation 

concludes; and (f) we'll consent to having the Court enter this Enhanced Clawback agreement as a stipulated order. 

(5) With respect to our requests for scientific or technical information-and every other outstanding document 

request-we'll give you 50 words, phrases, or Boolean sets of words or phrases to search. No negotiation, no timeconsuming back-and-forth (although if you want to add to our list, you're welcome to do so). You search 

everything ECM has for scientific and technical information, and all other outstanding document requests, and give 

us the results by the end of the month. You agree that ECM can't use anything it doesn't produce at that time. 

(6) Everything above is limited to January 1, 2009 forward- exactly as you've requested. 

As I mentioned, we hope you'll accept this proposal. Initially, with respect to the correspondence that's 

been at the center of this dispute, ECM's burden is-literally-near zero. All ECM has to do is copy its database 

and send it to us. If ECM needs help uploading the database to an FTP site, we'll ask our technical support staff to 

help you (at our expense). Depending on how smoothly things go, we're talking about an hour or two of effort and 

potentially no expense to ECM. Even at worst, the time and expense to ECM will be negligible. We'll do all the 

hard work on our end. Mr. Sinclair can walk away knowing that he got a much better deal that the law entitles him 

to, or than most other litigants receive. Furthermore, ECM gets the date restriction it wants. ECM gets to avoid 

searching its archives for correspondence. And ECM gets to limit its production on all other outstanding requests 

to whatever the 50 search terms hit-which means we'll never see potentially tens of thousands of responsive 

documents. 

Although we believe that both sides discharged their "meet and confer" obligation through Tuesday's 

lengthy call about the issue, we're happy to speak with you again at 10:00 AM Tuesday. If we're unable to reach an 

agreement by that time, we'll promptly seek relief. 

There are three other issues. First, ECM has not responded to our interrogatory seeking annual revenues per 

customer (or distributor), although ECM's response was due several weeks ago. On January 10, the Court held that 

ECM "has failed to demonstrate that ECM's revenues by customer should not be disclosed in discovery." Order at 

8. Thc.tc's no point to moving to compel tllis same information a sccoud Lime, so we're really out of 

options. Although we will meet and confer with you about this on Tuesday morning, we assume you won't consent 

to the imposition of sanctions against ECM, so we anticipate seeking such sanctions on Tuesday 

afternoon. Obviously, if you have a change of heart about this, please let us know. 

Exh. RX-G:2 

Page 2 of3 

2 
Second, with respect to your proposed redactions, we have no objection, subject to your agreement that 

we're not waiving or limiting any right to object to any improper redactions in the future. Assuming we're in 

agreement, please go ahead and inform the Court accordingly. 

Third, after we noticed ECM's corporate deposition on January 24, you objected to that date. On our call 

Tuesday, we were close to an agreement to move the deposition back almost a month, to February 18. You told us 

that you would confinn that date with Mr. Sinclair, ECM's designee, and get back to us Wednesday, but it's Friday 

afternoon, and we haven't heard from you. Although our February 18 offer remains open, the January 24 

deposition notice remains effective. 

Thanks, 

Jonathan Cohen 

Enforcement Division I Bureau of Consumer Protection I Federal Trade Commission 

600 Pennsylvania Avenue, N.W., M-8102B Washington, D.C. 20580 

(202) 326-2551 I jcohen2@ftc.gov 

Exh. RX-G:2 

Page 3 of3 

3 
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 

COMPLAINT COUNSEL'S RESPONSE TO 

RESPONDENT ECM BIOFILMS, INC.'S FIRST SET OF 

REQUESTS FOR PRODUCTION OF DOCUMENTS AND TIDNGS 

Pursuant to Rule 3.37 of the Federal Trade Commission's Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent ECM Biofilms, Inc.'s ("ECM's") First Set ofRequests for Production 

of Documents and Things. 

GENERAL OBJECTIONS 

1. Complaint Counsel reserves the right to assert additional objections to production 

of information or documents as appropriate and to supplement these objections and responses. 

As to each request where Complaint Counsel has stated that it will produce or make responsive 

documents available for inspection, such a statement does not imply or represent that responsive 

documents are known to exist or do, in fact, exist. Complaint Counsel objects to the Document 

Requests to the extent they seek information that is not relevant to the subject matter of the 

litigation and/or not reasonably calculated to lead to the discovery of relevant infonnation. 

2. Complaint Counsel's willingness to provide information or documents 

notwithstanding the objectionable nature of the Document Request shall not be construed as (a) 

an acknowledgment or admission that the material is relevant; (b) a waiver ofthe General 

Exh.RX-I 

Page 1 of9 
Objections or the Objections asserted in response to specific document requests; or (c) an 

agreement that requests for similar information will be treated in a similar manner. 

3. Complaint Counsel objects to each document request to the extent that it calls for 

information or the production of any document that is protected from disclosure by the attorneyclient privilege, the attorney work-product privilege, the deliberative process privilege, the law 

enforcement privilege, the investigative privilege, the government informant privilege, the nontestifying expert privilege, the joint prosecution privilege, the common interest doctrine, that is 

exempt from disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is 

protected from disclosure by the privilege for information given to the FTC on a Pledge of 

Confidentiality, that is protected from disclosure under principles of financial privacy, that is 

subject to a protective order from another litigation, or that is subject to any other applicable 

legal protection or privilege. The inadvertent production of any privileged documents shall not 

be deemed a waiver of any applicable privilege with respect to that document or any other 

document or information. 

4. Complaint Counsel objects to each document request to the extent that it calls for 

materials generated and transmitted between Complaint Counsel and non-testifying Federal 

Trade Commission employees, as outside the scope of discovery pursuant to Rule 3.31 ( c )(2). 

5. Complaint Counsel objects to each document request to the extent it seeks 

information that is not relevant to the subject matter of the litigation and/or not reasonably 

calculated to lead to the discovery of infonnation relevant to the allegations of the complaint, to 

the proposed relief, or to Respondent's defenses. 

6. Complaint Counsel objects to each document request to the extent that it is overly 

broad, unduly burdensome, vague, and ambiguous. 

Exb. RX-1 

Page 2 of9 

2 
7. Complaint Counsel objects to each document request to the extent that it seeks 

documents that are not in the possession, custody, or control of Complaint Counsel. 

8. Complaint Counsel will not produce documents responsive to this request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or litigation in this matter. 

9. Complaint Counsel will not produce documents responsive to this request that 

have been provided to Respondent previously. 

10. This response addresses only documents collected or reviewed in the course of the 

investigation and prosecution of this case and that are in the possession, custody or control of the 

FTC Bureau of Consumer Protection. See FTC Rule 3.31(c)(2). Complaint Counsel objects to 

the Requests to the extent they seek documents outside this scope, and such documents will not 

be produced. 

11. Each ofthe foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving any of such objections, 

Complaint Counsel responds as follows: 

OBJECTIONS AND RESPONSES TO REQUESTS 

Request for Production 1: Provide all documents that concern whether plastics in 

general and ECM Plastics in particular will break down and decompose into elements found in 

nature after customary disposal or in a landfill. 

Response: Complaint Counsel objects to Request for Production 1 on the grounds that a 

request for documents concerning plastics in general is overly broad, vague, and ambiguous. 

Subject to and without waiving the foregoing objections, Complaint Counsel will produce 

responsive, non-privileged documents. 

Exh. RX-1 

Page3 of9 

3 
Request for Production 2: Provide all documents, whether prepared by or for the 

Commission or any other entity, concerning consumer perception, comprehension, or recall 

(including, but not limited to, copy tests, marketing or consumer surveys and reports, penetration 

tests, recall tests, audience reaction tests, and communication tests) of plastics biodegradability; 

biodegradability in general; landfill composition; or conditions of customary waste disposal. 

Response: Complaint Counsel objects to Request for Production 2 on the grounds that it 

is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing objections, 

Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 3: Provide all documents that support or call into question your 

conclusion that ECM's biodegradable claims for degradation are false. 

Response: Complaint Counsel objects to Request for Production 3 on the grounds that 

the request is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 4: Provide all documents that support or call into question your 

conclusion that consumers likely interpret unqualified degradable claims to mean that the entire 

product or package will completely decompose into elements found in nature within one year 

after customary disposal. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Exh.RX-1 

Page 4 of9 

4 
Request for Production 5: Provide all documents relating to your contention that 

express or implied representations made in or implied by ECM BioFilm's written advertising or 

promotional materials are false or misleading. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 6: Provide all correspondence between FTC and ASTM and 

ASTM present and past members, officers, directors, or agents. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 7: Provide all documents pertaining to the ASTM standards 

which concern plastics biodegradability, or concern ASTM policies, membership, or revisions to 

standards. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privilt:ged documents. 

Request for Production 8: Provide all documents that relate to your contention that 

end-consumers (as opposed to ECM's trade customers) view, understand, or rely on ECM's 

written advertising materials. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Exh. R.X-1 

Page 5 of9 

5 
Request for Production 9: Provide all documents relating to any investigation 

conducted by you or on your behalf relating to any advertising claims or representations 

concerning the ECM MasterBatch Pellets, or any other ECM plastics additive. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 10: Produce all documents concerning your contention that 

landfills are generally anaerobic environments that lack oxygen and that restrict the amount of 

liquid infiltration or moisture content. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 11: Provide all documents concerning plastics chemistry, 

formation, polymerization, formulation, mineralization, enzymatic degradation, or 

depolymerization in biodegradable and non-biodegradable polymers. 

Response: Complaint Counsel objects to Request for Production 11 on the grounds that 

it is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 12: Provide aH documents relating to your contention that 

ECM's tests were not designed to support its claims, and that the data from ECM's testing is 

invalid or cannot support reliable conclusions. 

Exh.RX-1 

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6 
Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 13: Produce all documents concerning the period of time under 

which conventional plastics generally biodegrade, including documents supporting your 

contention that plastics will normally require hundreds of thousands of years to biodegrade. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 14: Produce all documents concerning your definition of 

"competent and reliable" scientific evidence as that definition concerns biodegradation claims 

for plastics in general and ECM's express and/or implied claims challenged by the FTC. 

Response: Complaint Counsel objects to Request for Production 14 on the grounds that 

it is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 15: Provide all documents relating to any advertisement or 

promotional material for the ECM MasterBatch pellets, other than documents produced by 

Respondents in pre-complaint disclosures or discovery. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Exh. RX-1 

Page 7 of9 

7 
Request for Production 16: Produce all documents identified in any answer to an 

Interrogatory propounded by ECM or on which you rely in answering any Interrogatory 

propounded by ECM. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Dated: January 2, 2014 

Exh. RX-1 

Page 8 of9 

8 

therine Johnson 2 2) 326-2185 

Jonathan Cohen (202) 326-2551 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop M-81 02B 

Washington, DC 20580 
CERTIFICATE OF SERVICE 

I hereby certify that on January 2, 2014, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel's Response to Respondent ECM Biofilms, Inc. 's 

First Set of Requests for Production of Documents or Things to be· served as follows: 

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 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@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. 

Exh.RX-1 

Page 9 of9 

9 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Faljsimik: (202) 326-2558 

Email: kjohnson3@ftc.gov