PUBLIC DOCUMENT

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

RESPONDENT’S MOTION TO COMPEL EXPERT RESPONSE TO SUBPOENAS 

DUCES TECUM

Pursuant to Rules 3.31 and 3.38, Respondent ECM BioFilms, Inc. (ECM) hereby moves 

this Court to compel Complaint Counsel’s experts, Drs. Stephen McCarthy (“McCarthy”), 

Thabet Tolaymet (“Tolaymet”), and Shane Frederick (“Frederick”) (collectively “Deponents”), 

to respond to Respondent’s subpoenas duces tecum. On April 7, 2014, Respondent issued 

subpoenas to those experts, and Complaint Counsel accepted service on their behalf. On April 

25, 2014, Complaint Counsel objected to the subpoenas, refusing to produce any documents 

except Dr. Tolaymet’s curriculum vitae. 

ECM has an undoubted right to discover all grounds germane to expert qualifications,

knowledge, training, and experience, including expert bias, conflicts of interest, and lack of 

independence. Subpoenas duces tecum are the most appropriate means to achieve that end. 

ECM therefore moves this Court to compel Complaint Counsel’s experts to respond to ECM’s 

subpoenas duces tecum. 

Respectfully submitted,

05 20 2014
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 /s/ Jonathan W. Emord

Jonathan W. Emord (jemord@emord.com)

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

DATED: May 19, 2014
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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

RESPONDENT’S MEMORANDUM IN SUPPORT OF MOTION TO COMPEL EXPERT 

RESPONSE TO SUBPOENAS DUCES TECUM

Respondent ECM BioFilms, Inc. (“ECM”) hereby moves for an order compelling 

Complaint Counsel’s experts, Drs. Stephen McCarthy (“McCarthy”), Thabet Tolaymet

(“Tolaymet”), and Shane Frederick (“Frederick”) (collectively “Subpoena Recipients”), to 

respond to ECM’s subpoenas duces tecum (Exhibits RX-A-1 – RX-A-3).

1

 Served on April 7, 

2014, the foregoing individuals have failed to produce any of the requested documents save one.

The bias, conflict of interest, and independence of Complaint Counsel’s experts are 

germane to their qualifications and opinions. See 16 C.F.R. 3.31(c); Fed. R. Evid. 702; Behler v. 

Hanlon, 199 F.R.D. 553, 561 (D. Md. 2001). Evidence within ECM’s possession reveals 

McCarthy to have a vested interest in the outcome of these proceedings.2 ECM is entitled under 

 1 Copies of ECM’s revised subpoena demands issued after discussion with Complaint 

Counsel are attached as Exhibits RX-B-1 – RX-B-3.

2 McCarthy invented a patent for a technology that competes directly with ECM’s 

biodegradable additive. See Exh. RX-G (U.S. Patent No. 5,883,199 (issued Mar. 16, 1999)). He 

profits from that patent. The University of Massachusetts, Lowell (“Umass”), McCarthy’s 

employer, is the patent’s assignee. See Exh. RX-G; RX-H-1 (Metabolix Website Article). 

Metabolix, Inc. is the exclusive licensee of the technology. See Exh. RX-H-1. Metabolix’s 

potential royalties from licensing Umass patents surpass $100,000 per year. See Exh. RX-H-2
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Rule 3.31(c)(1) to probe to the fullest extent possible issues of independence, bias, and conflict

of all Complaint Counsel’s experts. 

BACKGROUND

On April 7, 2014, ECM served subpoenas duces tecum on Complaint Counsel’s experts. 

See Exh.’s RX-A-1; RX-A-2; RX-A-3. ECM served the subpoenas on Complaint Counsel at 

their request. See Exh. RX-C. On April 11, Complaint Counsel refused to honor the subpoenas, 

arguing that Rule 3.34 subpoenas were not appropriate for their experts, which they deemed FTC 

“agents,” and that Rule 3.31A defines the universe of information obtainable from FTC’s 

testifying experts. Exh. RX-D. ECM responded on April 15, 2014, explaining that subpoenas 

duces tecum were indeed the appropriate means to obtain documents and information from nonparties, including Complaint Counsel’s testifying experts, and that those experts were legally 

obligated to respond consistent with Rule 3.34. See Exh. RX-E. ECM refined some of its 

requests to accommodate Complaint Counsel’s concerns. See Exh.’s RX-B-1; RX-B-2; RX-B-3. 

On April 25, Complaint Counsel reiterated its experts’ categorical refusal to comply but, despite 

the refusal, turned over one responsive document: Dr. Tolaymet’s Curriculum Vitae. See Exh.’s

RX-F-1; RX-F-2; RX-F-3.

3

 

(Umass Website Article). Metabolix supplied grants to Umass of approximately $2.5 million, 

sponsored more than 50 students for their master’s and doctorate degrees, and has made 

substantial equipment donations (over $500,000). See Exh. RX-H-2. McCarthy and/or Umass 

may also be the recipient of other direct and indirect remunerative benefits from the exclusive 

license. Since 2008, Metabolix has lobbied the FTC to act against ECM. See Exh. RX-I. 

Metabolix is also a member of the Biodegradable Products Institute (BPI), a primary ECM 

competitor, and sells approximately a dozen products that are “BPI certified.” See Exh. RX-J-1; 

RX-J-2. BPI is a vocal opponent of ECM, and has lobbied the FTC repeatedly since at least 

2005 to act against ECM and ECM’s customers. See Exh. RX-N-1 (BPI Correspondence to FTC 

of April 25, 2005).

3 Complaint Counsel’s categorical objection to production accompanied by some 

production constitutes a waiver of objection.
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Complaint Counsel’s witnesses have connections relevant to ECM’s defense. The green 

plastics industry is divided into two competing camps, those who market “compostable” 

products and those who market “biodegradable” products. “Compostables” are a narrow subset 

of biodegradable plastics. Compare FTC’s Revised Green Guides 16 C.F.R. § 260.7(b) (for 

compostability marketing, the marketer must have evidence that “all the materials in the item 

will break down into, or otherwise becomes part of, usable compost”) with FTC’s Revised Green 

Guides 16 C.F.R. § 260.8(b) (for degradability marketing, the marketer must have evidence that 

“the entire item will completely break down and return to nature”). Advocates of compostables 

benefit by regulation that limits what may be advertised as “biodegradable” when that limit is 

based on rate, and they have successfully lobbied the Commission to achieve that restriction in 

the Green Guides. See, e.g., Exh. RX-M (Comments of BPI from January 30, 2008) 

(recommending to FTC that, in order for a product to be advertised as biodegradable, the product 

must break down within 12-18 months); RX-N-1; RX-N-2 (BPI Correspondence to FTC of 

March 30, 2010) (convincing FTC to act against two additional companies marketing their 

products as biodegradable).

McCarthy will testify concerning biodegradability of plastics made with ECM’s additive. 

See Exh. RX-L. McCarthy invented, and holds a lucrative patent for, a competing technology, 

which patent is exclusively licensed to Metabolix, Inc. See Exh. RX-G. Metabolix has supplied 

grants to Umass of at least $2.5 million. See Exh. RX-H-2. Since 2008, Metabolix has been 

lobbying the FTC to act against ECM. See Exh. RX-I. Metabolix is a member of BPI, which is 

controlled by manufacturers of compostables, and sells approximately a dozen products that are 

“BPI certified.” See Exh. RX-J-1. Like Metabolix, BPI is a vocal ECM opponent and has 

lobbied FTC since at least 2005 to act against ECM and ECM’s customers. See Exh. RX-N-1. 
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Information concerning McCarthy’s economic ties are thus highly relevant to the issues of bias, 

conflict of interest, and independence. 

ARGUMENT

A. Subpoenas Duces Tecum Are Proper to Discover Information from 

Testifying Experts

Commission Rules do not exempt testifying experts from discovery, including subpoenas 

duces tecum. See Rule 3.34(b), cf. 3.31A(e) (exempting consulting but not testifying experts). 

Subpoenas are routinely used to obtain discoverable information from testifying experts. See All

W. Supply Co. v. Hill’s Pet Prods. Div., Colgate-Palmolive Co., 152 F.R.D. 634, 639 (D. Kan. 

1993) (“[For] nonparties such as plaintiff's expert witness, . . . documents may be [obtained]

by subpoena duces tecum”).

1. Rule 3.31A Is Not a Discovery Limit

Complaint Counsel claims expert subpoenas are verboten, arguing that Rule 3.31A 

describes the universe of information discoverable from its testifying experts, thereby relieving 

them of the obligation to reveal any evidence of bias, conflict of interest, and lack of 

independence. See Exh. RX-D (CC Letter of Apr. 11, 2014). That interpretation violates ECM’s 

right to develop a full record in defense, thus also violating its Fifth Amendment right to 

procedural due process. See F.C.C. v. Schreiber, 329 F.2d 517, 525 (9th Cir. 1964) modified,

381 U.S. 279, 85 S. Ct. 1459, 14 L. Ed. 2d 383 (1965) (“the [APA] assures due process under the 

Fifth Amendment where there is a trial-type, adjudicative proceeding”); Mathews v. Eldridge, 

424 U.S. 319, 348-49 (1976) (the “essence of due process” is to “insure that [parties are] given a 

meaningful opportunity to present their case[s]”) (citations omitted). Rule 3.31A sets a 

mandatory minimum of expert disclosures required but does not define the universe of what may 

be discovered from experts. See Rule 3.31A(c). Information related to experts’ financial 
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connections that may reveal bias, conflict, or lack of independence are highly relevant and 

essential for this Court to assay when assessing the probity and weight of expert testimony. If 

economic connections of experts are not fair game, how then would it ever be possible to prove 

an economic conflict of interest, bias, or lack of independence? Without access to such 

information, the FTC can improperly shield bias and benefit from that non-disclosure. 

Complaint Counsel argues that Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992) 

supports its position. Not so. Marsh and its progeny are inapposite, because ECM requests 

information germane to bias and lack of independence that is independent of the proffered expert 

reports in this case and of case information in FTC’s files. Marsh addressed discovery requests 

for “entire files” related to the opposing party. In Marsh, the movant had sought to circumvent 

the limits of privilege and the court’s scheduling order by obtaining that party information 

through non-party subpoenas. Nothing of that kind exists here.

In its defensive correspondence to ECM, Complaint Counsel mistakenly relies on cases 

concerning expert files developed for the specific case at issue (or involving information from 

consulting experts, which falls within a separate protection under Rule 3.31A(e)). See, e.g.,

Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (“information sought pertained. 

. . to one of the parties in the case”); see, e.g., In re Fuller, 2013 WL 5305317, at *1–3 (D. Me. 

Sept. 18, 2013) (subpoena requested “expert’s files”—namely, documents about one of the 

defendants); Ambrose v. Southworth Prod. Corp., 1997 WL 470359, at *1 (W.D. Va. June 24, 

1997) (subpoena requested documents about “[an intervenor-plaintiff] or [the defendant]”); 

Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992) (subpoenas requested the experts’ “entire 

files related to the plaintiff”). ECM does not seek FTC files or FTC documents from the experts; 

rather, ECM seeks documents germane to the experts’ biases, conflicts, and independence. See
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Quaile v. Carol Cable Co., 1992 WL 277981, at *2 (E.D. Pa. Oct. 5, 1992) (holding that 

subpoena served on expert is valid if it seeks information for impeachment).

4

The Federal Rules’ advisory notes are instructive. The counterpart to Rule 3.31A is

FRCP Rule 26(a), and that federal rule contemplates use of subpoenas duces tecum in expert 

discovery:

The enumeration in Rule 26(a) of items to be disclosed does not prevent a 

court from requiring by order or local rule that the parties disclose additional 

information without a discovery request. Nor are parties precluded from 

using traditional discovery methods to obtain further information regarding 

these matters, as for example asking an expert during a deposition about 

testimony given in other litigation beyond the four-year period specified in 

Rule 26(a)(2)(B).

Advisory Comm. Notes for 1993 Amends, to Fed.R.Civ.P. 26(a) (emphasis added); 

United States v. Bazaarvoice, Inc, C 13-00133 WHO (LB), 2013 WL 3784240 (N.D. Cal. July 

18, 2013) (“Rule 26(a)(2)(B) . . . does not preclude parties from obtaining further information 

through ordinary discovery tools”) (citations omitted). Precedent favors ECM’s position. See

Expeditors Int’l of Wash., Inc. v. Vastera, Inc., No. 04 C 0321, 2004 WL 406999, at *3 (N.D. Ill. 

Feb. 26, 2004) (“Subpoena duces tecum is . . . an appropriate discovery mechanism against 

nonparties such as a party's expert witness”); Reit v. Post Prop., Inc., No. 09 Civ. 

5455(RMB)(KNF), 2010 WL 4537044, at *9 (S.D.N.Y. Nov. 4, 2010) (“Subpoena duces tecum. 

. . is an appropriate discovery mechanism against a nonparty expert”); Lawrence E. Jaffe Pension 

Plan v. Household Int’l, Inc., No. 02 C 5893, 2008 WL 687220, at *2 (N.D. Ill Mar. 10, 2008) 

 4 Complaint Counsel cites In the Matter of Basic Research, No. 9318, 2004 FTC LEXIS 

237, at *9 (Dec. 9, 2004). That case, however, supports ECM’s position because it concerned 

the propriety of the subpoenas’ content, not the authority to issue them ab initio. See In the 

Matter of Basic Research, at *9.
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(“It is clear . . . that a subpoena duces tecum . . . is an appropriate discovery mechanism against . 

. . a party's expert witness”) (citation omitted).

2. Subpoenas Are Proper for Non-Party Experts

Subpoenas, not document requests or interrogatories, are proper to obtain additional 

discovery from experts. See 16 C.F.R. § 3.34(b) (broadly stating that a party may command “a 

person” to produce designated documents and other materials, and that “any party” may use a 

subpoena for “discovery”). Nothing in Rule 3.34 prohibits additional discovery from testifying 

experts. Complaint Counsel proceeds hypocritically, because it has discovered information of 

ECM’s experts beyond the information contemplated in Rule 3.31A. See, e.g., Exh. RX-K (CC 

Request for Production of Documents); RX-L (CC Third Set of Interrogatories). Moreover, FTC 

misapprehends the status of its experts; they are not FTC “agents.” Experts testifying for ECM 

and for FTC are not ECM and FTC agents by that fact alone. See Glendale Fed. Bank, FSB v. 

United States, 39 Fed. Cl. 422, 424 (Fed. Cl. 1997) (“The expert witness, testifying under oath, is 

expected to give his own honest, independent opinion... He is not the sponsoring party's agent at 

any time merely because he is retained as its expert witness”). Documents requested under Rule 

3.37(a) from experts are inappropriate because those requests seek production of information 

about a “party” to the case; experts are neither parties nor party agents. The information

discoverable from experts is not a possession of the parties; it is the property of the experts 

themselves. 16 C.F.R. § 3.37(a).

B. ECM Is Entitled to Discovery Concerning Expert Witness Bias, Conflicts and 

Lack of Independence

Evidence of an expert’s bias, conflicts, and lack of independence are directly relevant and 

discoverable. See Behler v. Hanlon, 199 F.R.D. 553, 556–57 (D. Md. 2001) (citing United States 

v. Abel, 469 U.S. 45, 49–52 (1984)) (other citations omitted) (“[A] witness may be impeached by 
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a showing he or she is biased, has an interest in the outcome of the litigation, is prejudiced in 

some relevant way, or has a motive to testify in a particular way”). Behler, 199 F.R.D. at 557 

(emphasis added) (“[T]he importance of credibility of witnesses . . . cannot be overstated, 

and this is especially true with respect to expert witnesses”). ECM is afforded “very 

considerable latitude” to investigate the bias of Complaint Counsel’s experts. LNC Invs., Inc. v. 

First Fid. Bank, No. 92 Civ. 7584(CSH), 2000 WL 1182772 (S.D.N.Y. Aug. 21, 2000).5 ECM

seeks no documents subject to the attorney-client privilege or work-product doctrine; its 

subpoenas do not request case files possessed by experts (e.g., those containing correspondence 

with counsel). See Exh’s. RX-RX-B-1; RX-B-2; RX-B-3. 

ECM has discovered evidence of McCarthy’s conflicts, lack of independence, and

interest in the outcome of these proceedings. See Exh. RX-G; RX-H-1; RX-H-2. His economic

ties are “classic evidence of bias” that parties must be allowed to discover through subpoenas. 

See Crowe v. Bolduc, 334 F.3d 124, 132 (1st Cir. 2003); Behler, 199 F.R.D. at 561 (allowing 

party to obtain, through subpoena duces tecum, evidence relating to an expert witness’s financial 

ties as relating to bias); Siligan Containers v. Nat’l Union Fire Ins., No. C 09-05971 RS(LB), 

2011 WL 1058861, at *6 (N.D. Cal. Mar. 23, 2011). Hypocritically, Complaint Counsel’s own 

non-party subpoenas have sought correspondence and documents related to bias and conflict. 

See, e.g., Exh. RX –O-1; RX-O-2.

 5 “[T]he concern remains that expert witnesses are, in effect, hired guns, who, while 

educated and experienced in the field, are willing and able to hire themselves out to the highest 

bidder to provide opinions in favor of the hiring party. Such concerns have led courts to open 

the door to the opposing party to obtain information from experts beyond that provided in Rule 

26(a)(2)(B), including financial information that would indicate their lack of impartiality and 

their bias in favor of the hiring party.” Campos v. MTD Products, Inc., 2:07-0029, 2009 WL 

920337 (M.D. Tenn. Apr. 1, 2009) (not reported).
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RELIEF

ECM moves this Court to compel Drs. McCarthy, Tolaymet, and Frederick to 

respond fully to ECM’s subpoenas.

Respectfully submitted,

 

Jonathan W. Emord (jemord@emord.com)

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

DATED: May 19, 2014
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STATEMENT CONCERNING CONFIDENTIALITY

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

motion, memorandum, and exhibits do not contain confidential information under this Court’s 

Protective Order and, so, ECM hereby files this motion to the public docket.

DATED: May 19, 2014.

 /s/ Jonathan W. Emord

Jonathan W. Emord

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937
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STATEMENT CONCERNING MEET AND CONFER

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

May 19, 2014, at approximately 11:30 AM EST, Respondent’s counsel, Lou Caputo, conferred by 

conference call with Complaint Counsel, Jonathan Cohen, in a good faith effort to resolve by 

agreement the issues raised in the foregoing Motion for Sanctions. The parties have been unable 

to reach an agreement on the issue raised in the attached motion.

Respectfully submitted,

 

Jonathan W. Emord (jemord@emord.com)

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938
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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

[PROPOSED] ORDER GRANTING RESPONDENT ECM BIOFILMS, INC.’S MOTION 

TO COMPEL 

This matter having come before the Administrative Law Judge on May ___, 2014, upon a 

Motion to Compel (“Motion”) filed by Respondent ECM BioFilms, Inc. (“ECM”) pursuant to 

Commission Rule 3.31 and 3.38, for an Order to compel Complaint Counsel. 

Having considered ECM’s Motion and all supporting and opposing submissions, and for 

good cause appearing, it is hereby ORDERED that ECM’s Motion is GRANTED; it is 

ORDERED that Drs. Frederick, McCarthy, and Tolaymet shall forthwith and without delay 

provide full responses to ECM’s pending subpoenas duces tecum. 

ORDERED: ______________________

D. Michael Chappell

Chief Administrative Law Judge

Date: 
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CERTIFICATE OF SERVICE

I hereby certify that on May 19, 2014, I caused a true and correct copy of the foregoing to 

be served as follows: 

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

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-113

Washington, DC 20580

Email: secretary@ftc.gov

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

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

One electronic copy to Counsel for Complainant:

Katherine Johnson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov

Joshua Millard

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jmillard@ftc.gov

Benjamin Theisman

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW
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Mail stop M-8102B

Washington, D.C. 20580

Email: btheisman@ftc.gov

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.

Respectfully submitted,

 

Jonathan W. Emord (jemord@emord.com)

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

DATED: Monday, May 19, 2014
RESPONDENT 

EXHIBIT 

RX-A-1 

Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

April 7, 2014 

VIA UPS

Dr. Stephen McCarthy, PhD 

Dept. of Plastics Engineering

University of Massachusetts Lowell

One University Avenue, Office, Ball 207 

Lowell, MA 01854 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Dr. McCarthy: 

 Pursuant to the Federal Trade Commission’s Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.’s subpoena duces tecum. This subpoena requests that you 

produce documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter.

 Please provide all requested documents no later than April 25, 2014. We welcome you to 

contact us with questions.

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

 Lou F. Caputo 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

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

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

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

Lou F. Caputo, Esq.

602.388.8901

lcaputo@emord.com

A Professional Corporation

WASHINGTON | VIRGINIA | PHOENIX

Resp. Mot. to Compel 

Exh. RX-A-1

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Resp. Mot. to Compel 

Exh. RX-A-1

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SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. STEPHEN MCCARTHY

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. to Compel 

Exh. RX-A-1

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an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
3 

M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents that concern ECM BioFilms, Inc., any past and present employee 

or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. 

 1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to, emails, 

documents appended to emails, reports and any other written or electronic document of any kind 

that is communicated from the subpoena recipient or its agents to any and all other persons and 

entities. 

Resp. Mot. to Compel 

Exh. RX-A-1

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4 

3. Regardless of the date, all correspondence, contracts, retainers, engagement letters 

between you and any public or private firm that manufactures and/or produces biodegradable 

and/or compostable products. 

4. Regardless of the date, all reports, analyses, assessments, tests, summaries, and 

conclusions issued to any public or private firm that manufactures and/or produces biodegradable 

and/or compostable products. 

5. Regardless of the date, all correspondence, contracts, retainers, engagement letters 

between you and any public or private firm that manufactures and/or produces a product or 

substance in competition with biodegradable plastics. 

6. Regardless of the date, all reports, analyses, assessments, tests, summaries, and 

conclusions issued to any public or private firm that manufactures and/or produces a product or 

substance in competition with biodegradable plastics. 

7. Regardless of the date, all correspondence, contracts, retainers, and/or agreements 

with the University of Massachusetts, Lowell (“Umass”) concerning research, funding, or grants 

related to biodegradable plastics or polymers. 

8. Regardless of the date, all patents invented and/or owned by you. 

9. Regardless of the date, all pending patents invented and/or sought by you. 

10. All licensing or royalty agreements involving or concerning your patents or 

intellectual property related to biodegradable and compostable products).

11. Copies of the following contract and grant support, all correspondence and 

proposals concerning such contracts and grants, and sources of funding for same: 

a. Metabolix, “Development of Novel of Biodegradable Materials, $1,500,196 

Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
5 

b. NSF Center for Biodegradable Polymer Research, $1,200,000 Industrial Members 

(8/93-present), Principal Investigator 

c. Polymer Degradation Research Center, $475,000, Industrial Members (8/89-8/93) 

d. Digital, “Plastics Materials Research”, $458,706

e. Metabolix Inc., Performance of PHA Derived Chemicals and Polyols in 

Polyurethane, $141,465 

f. 3M, “Composting Research”, $155,000 

g. Warner Lambert, “Biodegradable Polymer Research”, $116,591 

h. National Science Foundation, “Biodegradable Polymer Research Center”, 

$110,000 (8/93-8/95) 

i. Department of the Army, “Polymer Degradation Research”, $104,000 

j. Institute for Plastics Innovation, “Injection Molding Research”, $75,000 

k. Massachusetts Centers of Excellence, “Institute for Plastics Innovation”, $75,000 

l. Metabolix Inc., Performance of Polyhydroxyalkanote Derived Chemicals and 

Polyols in Polyurethane, $71,465 

m. Battelle, “Biodegradable Packaging Development”, $59,865 

n. DuPont Corian, $50,000 

o. Invista, “Evaluation of Plasticizers”, $ 28,000 

p. Massachusetts Centers of Excellence, “Polymer Degradation Research”, $25,000

12. All documents and materials concerning your appointment or nomination of any 

position, title. or role with the BioEnvironmental Polymer Society and/or the Society of Plastics 

Engineering.

Resp. Mot. to Compel 

Exh. RX-A-1

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6 

13. All documents concerning any testing or product evaluations involving 

biodegradable and/or compostable plastics in which you participated on behalf of, or as a 

member of, the BioEnvironmental Polymer Society and/or the Society of Plastics Engineers. 

14. All documents and materials that formed the basis of your nominations and/or 

awards from the BioEnvironmental Polymer Society, including, but not limited to, the 2008 Jim 

Hammar Memorial Service Award.

15. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

16. All correspondence with Dr. Ramani Narayan.

17. All correspondence with any employee or contracting employee of O.W.S., Inc. 

related to biodegradable plastics.

18. All correspondence with any employee and/or representative of the Federal Trade 

Commission concerning biodegradable plastics.

19. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case.

20. All documents revealing shares of stock or ownership interests held by you in any 

company. 

21. All documents revealing consultant positions, executive or corporate positions, or 

financial arrangements between you and any company, university, or other financial institution 

concerning work or employment related to biodegradable plastics or polymers. 

22. All correspondence between you and any private company concerning plastics, 

biodegradation, ECM BioFilms, and any other company involved in the manufacture of 

biodegradable products. 

Resp. Mot. to Compel 

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PUBLIC DOCUMENT
7 

23. All documents and correspondence between you and the authors of the article 

Gómez, EF, Michel Jr., FC. “Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and long-term soil incubation” Polymer 

Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

24. Copies of all scientific publications concerning biodegradable and/or compostable 

polymers that you have authored.

25. Copies of all papers and/or presentations concerning biodegradable and/or 

compostable plastics that you have delivered or presented. 

26. All documents revealing awards, bonuses, stock options, or other accolades 

bestowed upon you and all correspondence associated with each, for work you performed with 

biodegradable polymers. 

27. All conflict of interest forms or agreements completed or signed by you. 

28. All documents concerning ASTM, including, but not limited to, correspondence 

in which you presented a proposal, voted on a proposal, or opposed a proposal then undergoing 

active consideration by the ASTM. 

29. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and deposition, hearing and trial 

transcripts involving you from that proceeding along with all orders issued by the courts in those 

proceedings.

30. Regardless of the date, if you have ever served as an expert in any other 

proceeding, copies of all expert reports and testimony given by you in those proceedings. 

Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
8 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the University of Massachusetts, Lowell

who have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

 2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. to Compel 

Exh. RX-A-1

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9 

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel 

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Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-1

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-A-2 

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

April 7, 2014 

VIA UPS

Dr. Thabet Tolaymet PhD 

Environmental Protection Agency 

26 Martin Luther King Drive

Cincinnati, OH 45268 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Dr. Tolaymet: 

 Pursuant to the Federal Trade Commission’s Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.’s subpoena duces tecum. This subpoena requests that you 

produce documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter.

 Please provide all requested documents no later than April 25, 2014. We welcome you to 

contact us with questions.

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

 Lou F. Caputo 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

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

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

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

Lou F. Caputo, Esq.

602.388.8901

lcaputo@emord.com

A Professional Corporation

WASHINGTON | VIRGINIA | PHOENIX

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
1 

SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. THABET TOLAYMET

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
2 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena.

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
3 

M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents that concern ECM BioFilms, Inc., any past and present employee 

or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. 

3. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

 1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
4 

4. All correspondence with Dr. Ramani Narayan. 

5. All correspondence with any employee or contracting employee of O.W.S., Inc. 

6. All correspondence between you and any member, employee, representative, or 

officer of the United States Federal Trade Commission.

7. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case.

8. All documents revealing shares of stock or ownership interests held by you in any 

company. 

9. Regardless of the date, copies of all papers, articles, and publications authored or 

co-authored by you that concern municipal solid waste landfills, bioreactor landfills, waste 

containment performance, construction and demolition waste landfills, transport of 

environmental pollutants, and biodegradable products, and/or that may help form your opinions 

and conclusions in this case.

10. Regardless of the date, all correspondence between you and Dr. Morton Barlaz.

11. Regardless of the date, all conflict of interest forms or agreements signed by you. 

12. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and deposition, hearing and trial 

transcripts involving you from that proceeding along with all orders issued by the courts in those 

proceedings.

13. Regardless of the date, if you have ever served as an expert in any other 

proceeding, copies of all expert reports and testimony given by you in those proceedings. 

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
5 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the Environmental Protection Agency who 

have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

 2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
6 

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-2

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-A-3 

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

April 7, 2014 

VIA UPS

Dr. Shane Frederick, PhD

Yale University

Yale School of Management

52 Hillhouse Ave, Room 116 

New Haven, CT 06511 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Dr. Frederick: 

 Pursuant to the Federal Trade Commission’s Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.’s subpoena duces tecum. This subpoena requests that you 

produce documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter.

 Please provide all requested documents no later than April 25, 2014. We welcome you to 

contact us with questions.

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

 Lou F. Caputo 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

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

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

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

Lou F. Caputo, Esq.

602.388.8901

lcaputo@emord.com

A Professional Corporation

WASHINGTON | VIRGINIA | PHOENIX

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
1 

SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. SHANE FREDERICK

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
2 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena.

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
3 

M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents that concern ECM BioFilms, Inc., any past and present employee 

or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. 

3. Regardless of the date, all contracts, retainers, and/or agreements with Yale 

University. 

 1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
4 

4. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

5. All correspondence with Dr. Ramani Narayan. 

6. All correspondence with any employee or contracting employee of O.W.S., Inc. 

7. All correspondence with the American Chemistry Council.

8. All correspondence with APCO Insight. 

9. All correspondence between you and any member, employee, representative, or 

officer of the United States Federal Trade Commission.

10. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case.

11. All documents revealing shares of stock or ownership interests held by you in any 

company. 

12. All documents revealing consultant positions, executive or corporate positions, or 

financial arrangements between you and any company, university, or other financial institution 

concerning work or employment related to consumer perception. 

13. Since January 1, 1999, copies of all papers, articles, dissertations, and 

publications authored by you that concern consumer perception and/or that may help form your 

opinions and conclusions in this case.

14. All conflict of interest forms or agreements signed by you. 

15. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and deposition, hearing and trial 

transcripts involving you from that proceeding along with all orders issued by the courts in those 

proceedings.

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
5 

16. Regardless of the date, if you have ever served as an expert in any other 

proceeding, copies of all expert reports and testimony given by you in those proceedings. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of Yale University who have knowledge of 

such matters, can authenticate the documents and materials produced, and 

who can testify to such matters.

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

 2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
6 

[Signature of party executing the declaration]

 Respectfully submitted,

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. to Compel 

Exh. RX-A-3

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-B-1 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
1 

SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. STEPHEN MCCARTHY

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
2 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
3 

M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents received or possessed before you were engaged as an expert 

(consulting or testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past 

and present employee or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. Production of all 

 1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to, emails, 

documents appended to emails, reports and any other written or electronic document of any kind 

that is communicated from the subpoena recipient or its agents to any and all other persons and 

entities. 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
4 

responsive materials should be submitted in accordance with the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this matter. 

3. All contracts, retainers, or engagement letters between you and any public or 

private firm that manufactures and/or produces biodegradable and/or compostable products. 

4. All reports, analyses, assessments, tests, data, summaries, and conclusions issued 

to any public or private firm that manufactures and/or produces biodegradable and/or 

compostable products concerning the biodegradability of plastics manufactured by those 

companies.

5. All correspondence between you and any firm that manufactures and/or produces 

a product or substance in competition generally with other biodegradable plastic products (to wit, 

ECM’s additive) concerning the biodegradability of plastics manufactured with plastic additives. 

6. All correspondence and sections of contracts, retainers, and/or agreements with 

the University of Massachusetts, Lowell (“Umass”) concerning funding (including research 

grants) of research related to biodegradable plastics or polymers. 

7. All your pending or existing patents that involve or relate to plastics and or 

biodegradable and compostable substances, products, and technologies, including those patents 

for which you are the assignor. 

8. All licensing or royalty agreements involving or concerning patents identified 

supra in response to Request 7, and all such agreements involving intellectual property related to 

biodegradable and compostable products. 

9. Copies of all contracts, grant documents (including proposals) for the following 

research projects you were involved in: 

a. Metabolix, “Development of Novel of Biodegradable Materials, $1,500,196 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
5 

b. NSF Center for Biodegradable Polymer Research, $1,200,000 Industrial Members 

(8/93-present), Principal Investigator 

c. Polymer Degradation Research Center, $475,000, Industrial Members (8/89-8/93) 

d. Digital, “Plastics Materials Research”, $458,706

e. Metabolix Inc., Performance of PHA Derived Chemicals and Polyols in 

Polyurethane, $141,465 

f. 3M, “Composting Research”, $155,000 

g. Warner Lambert, “Biodegradable Polymer Research”, $116,591 

h. National Science Foundation, “Biodegradable Polymer Research Center”, 

$110,000 (8/93-8/95) 

i. Department of the Army, “Polymer Degradation Research”, $104,000 

j. Institute for Plastics Innovation, “Injection Molding Research”, $75,000 

k. Massachusetts Centers of Excellence, “Institute for Plastics Innovation”, $75,000 

l. Metabolix Inc., Performance of Polyhydroxyalkanote Derived Chemicals and 

Polyols in Polyurethane, $71,465 

m. Battelle, “Biodegradable Packaging Development”, $59,865 

n. DuPont Corian, $50,000 

o. Invista, “Evaluation of Plasticizers”, $ 28,000 

p. Massachusetts Centers of Excellence, “Polymer Degradation Research”, $25,000

10. All documents concerning any testing or product evaluations involving 

biodegradable and/or compostable plastics in which you participated on behalf of, or as a 

member of, the BioEnvironmental Polymer Society and/or the Society of Plastics Engineers. 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
6 

11. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

12. All correspondence with Dr. Ramani Narayan. 

13. All correspondence with any employee or contracting employee of O.W.S., Inc. 

related to biodegradable plastics.

14. All correspondence (not subject to attorney client or work-product privilege and 

received before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics.

15. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

16. All documents revealing shares of stock or ownership interests held by you in any 

company that sells, manufactures, or markets plastics, biodegradable technologies, and/or 

compostable technologies. 

17. A listing of all consultant, executive, or corporate positions you held concerning 

work or employment related to the biodegradability of plastics over the past ten years. 

18. All documents and correspondence between you and the authors of the article 

Gómez, EF, Michel Jr., FC. “Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and long-term soil incubation” Polymer 

Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
7 

19. Copies of all scientific publications, papers, or presentations that you authored 

concerning the rate or extent of biodegradable (including compostable) polymers when measured 

in a laboratory environment or in situ. 

20. All conflict of interest forms or agreements completed or signed by you in 

association with your work at the Umass, or as a testifying witness in this case.

21. All documents concerning ASTM, including correspondence, in which you 

presented a proposal, voted on a proposal, or opposed a proposal concerning biodegradable 

plastics standards or test methods. 

22. If you have ever served as an expert in any other proceeding involving the Federal 

Trade Commission, copies of all expert reports and testimony given by you in those proceedings. 

Production of all responsive materials should be submitted in accordance with the Commission’s 

Rules of Practice and the ALJ’s Scheduling Order in this matter. 

23. If you have ever served as an expert in any other legal proceeding involving 

plastics technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance with the 

Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
8 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the University of Massachusetts, Lowell

who have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

 2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
9 

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel 

Exh. RX-B-1

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-B-2 

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
1 

SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. THABET TOLAYMET

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
2 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
3 

M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents received or possessed before engagement as an expert (consulting 

or testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and present 

employee or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. Production of all 

 1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
4 

responsive materials should be submitted in accordance with the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this matter. 

3. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

4. All correspondence with Dr. Ramani Narayan.

5. All correspondence with any employee or contracting employee of O.W.S., Inc. 

related to biodegradable plastics.

6. All correspondence (not subject to attorney client or work-product privilege and 

received before engagement as an expert in FTC Docket No. 9358) between you and any 

member, employee, representative, or officer of the United States Federal Trade Commission.

7. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

8. A listing of all shares of stock or ownership interests held by you in any company 

associated with plastics, biodegradable products or technologies, and/or compostable products or 

technologies. 

9. Copies of all papers, articles, and publications that you authored or co-authored

concerning the rates of biodegradation of landfilled waste, including municipal solid waste 

landfills, bioreactor landfills, and commercial composters.

10. Copies of all papers, articles, and publications that you authored or co-authored 

concerning the anaerobic or aerobic biodegradability of plastic polymers. 

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
5 

11. All correspondence between you and Dr. Morton Barlaz concerning rates of 

biodegradation in landfills. 

12. All conflict of interest forms or agreements signed by you in association with 

your employment with the Environmental Protection Agency, or in association with this case. 

13. If you have ever served as an expert in any other proceeding involving the Federal 

Trade Commission, copies of all expert reports and testimony given by you in those proceedings. 

Production of all responsive materials should be submitted in accordance with the Commission’s 

Rules of Practice and the ALJ’s Scheduling Order in this matter. 

14. If you have ever served as an expert in any other legal proceeding involving 

environmental claims or technologies, produce copies of all expert reports and testimony given 

by you in those proceedings. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
6 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the Environmental Protection Agency who 

have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration] 

 2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. to Compel 

Exh. RX-B-2

PUBLIC DOCUMENT
7 

 Respectfully submitted,

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel 

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RESPONDENT 

EXHIBIT 

RX-B-3 

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1 

SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. SHANE FREDERICK

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. to Compel 

Exh. RX-B-3

PUBLIC DOCUMENT
2 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. to Compel 

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PUBLIC DOCUMENT
3 

M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents received or possessed before engagement as an expert (consulting 

or testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and present 

employee or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. Production of all 

 1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. to Compel 

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4 

responsive materials should be submitted in accordance with the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this matter. 

3. Regardless of the date, all sections of contracts, retainers, and/or agreements with 

Yale University concerning conflicts of interest and/or supplemental employment (such as 

consultation services in litigation).

4. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

5. All correspondence with Dr. Ramani Narayan. 

6. All correspondence (not subject to attorney client or work-product privilege and 

exchanged before engagement as an expert in FTC Docket No. 9358) between you and any 

member, employee, representative, or officer of the United States Federal Trade Commission.

7. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

8. A listing of all shares of stock or ownership interests held by you in any company

associated with plastics, biodegradable products or technologies, and/or compostable products or 

technologies. 

9. All documents, including papers, articles, dissertations, and publications that you 

authored, co-authored, or contributed to that concerned work related to marketing research 

(including consumer perception) of trade consumers, e.g., corporate entities, distributors, 

wholesalers, etc., as opposed to end-consumers.

Resp. Mot. to Compel 

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PUBLIC DOCUMENT
5 

10. Since January 1, 1999, copies of all papers, articles, dissertations, and 

publications authored by you that concern consumer perception that may help form your 

opinions and conclusions in this case. Production of all responsive materials should be 

submitted in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling 

Order in this matter.

11. All conflict of interest forms or agreements signed by you. 

12. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and transcripts (deposition, hearing and 

trial) involving you in your professional capacity, along with all orders issued by the courts in 

those proceedings. 

13. If you have ever served as an expert in any other proceeding involving the Federal 

Trade Commission, copies of all expert reports and testimony given by you in those proceedings. 

Production of all responsive materials should be submitted in accordance with the Commission’s 

Rules of Practice and the ALJ’s Scheduling Order in this matter.

14. If you have ever served as an expert in any other legal proceeding involving 

environmental claims, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance with the 

Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

Resp. Mot. to Compel 

Exh. RX-B-3

PUBLIC DOCUMENT
6 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of Yale University who have knowledge of 

such matters, can authenticate the documents and materials produced, and 

who can testify to such matters.

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

 2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. to Compel 

Exh. RX-B-3

PUBLIC DOCUMENT
7 

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel 

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RESPONDENT 

EXHIBIT 

RX-C 

Resp. Mot. to Compel 

Exh. RX-C

PUBLIC DOCUMENT
From: Cohen, Jonathan

To: Lou Caputo; Jonathan Emord; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Docket No. 9358, Subpoenas Duces Tecum

Date: Monday, April 07, 2014 4:48:25 PM

Lou,

            Your prior email does not state that your “subpoenas are to be dispatched today.” 

Rather, you wrote:  “Please find the attached subpoenas duces tecum dispatched today.” 

Obviously, we can’t accept service of subpoenas you already sent to our experts via Federal

Express.  If, in fact, the subpoenas were not “dispatched today,” but are merely scheduled to be

dispatched, then yes, we will accept service on our experts’ behalf. 

            I note that this acceptance reserves all rights other than the right to object to the

subpoenas based on their service. 

            We’ll give you a call tomorrow at 4:30 EST to discuss our objections. 

 

Jonathan Cohen

Enforcement Division |  Bureau of Consumer Protection |  Federal Trade Commission 

600 Pennsylvania Avenue, N.W., M-8102B  Washington, D.C.  20580 

(202) 326-2551  | jcohen2@ftc.gov  

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, April 07, 2014 7:28 PM

To: Cohen, Jonathan; Jonathan Emord; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Docket No. 9358, Subpoenas Duces Tecum

Jonathan,

We assume by your comments that Complaint Counsel will accept service on behalf of Drs.

McCarthy, Tolaymet, and Frederick.  Please confirm.  As previously stated, our subpoenas are to be

dispatched today.   If you are stating that Complaint Counsel will not accept service of a subpoena

on behalf of its own experts, please inform us of this immediately.  Further, subpoenas to retained

experts are permissible. See All W. Pet Supply Co. v. Hill's Pet Products Div., Colgate-Palmolive Co.,

152 F.R.D. 634, 639 (D. Kan. 1993) (“With regard to nonparties such as plaintiff's expert witness, a

request for documents may be made by subpoena duces tecum pursuant to Rule 45”); Expeditors

Int'l of Washington, Inc. v. Vastera, Inc., 04 C 0321, 2004 WL 406999 (N.D. Ill. Feb. 26, 2004)

(rejecting blanket prohibition of subpoenas to retained experts under Marsh v. Jackson). 

Please confirm whether you will accept service.  We are available for a call to hear more of your

position tomorrow after 3:00 PM EST.

Thank you,

Lou

Resp. Mot. to Compel 

Exh. RX-C

PUBLIC DOCUMENT
Lou Caputo | EMORD & ASSOcIaTeS, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (6

388-8901 | Facsimile: (602) 393-4361 | 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: Cohen, Jonathan [mailto:jcohen2@ftc.gov] 

Sent: Monday, April 07, 2014 3:00 PM

To: Lou Caputo; Jonathan Emord; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Docket No. 9358, Subpoenas Duces Tecum

Counsel,

            These subpoenas to our experts are grossly improper.  Both the FRCP Commentary and

case law make plain that you cannot subpoena experts directly, and nothing in FTC Rule 3.34

suggests otherwise.  See, e.g., FRCP 45, 1991 Amendment, Subsection (c) Advisory Committee

Notes; Marsh v. Jackson, 141 F.R.D. 431, 432 (W.D. Va. 1992) (mag. op.). 

            Please withdraw these subpoenas and re-submit your proposed discovery as document

requests directed to Complaint Counsel.  We will then respond or object accordingly. 

            Alternatively, if you will not withdraw the subpoenas, please provide us with times

tomorrow afternoon when you are available to meet and confer. 

Jonathan Cohen

Enforcement Division |  Bureau of Consumer Protection |  Federal Trade Commission 

600 Pennsylvania Avenue, N.W., M-8102B  Washington, D.C.  20580 

(202) 326-2551  | jcohen2@ftc.gov  

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, April 07, 2014 4:59 PM

To: Johnson, Katherine

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

Subject: Docket No. 9358, Subpoenas Duces Tecum

Counsel,

Please find the attached subpoenas duces tecum dispatched today.

Thank you,

Lou Caputo | EMORD & ASSOcIaTeS, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (6

388-8901 | Facsimile: (602) 393-4361 | www.emord.com

Resp. Mot. to Compel 

Exh. RX-C

PUBLIC DOCUMENT
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.

Resp. Mot. to Compel 

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RESPONDENT 

EXHIBIT 

RX-D 

Resp. Mot. to Compel 

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In re ECM BioFilms

April 15, 2014 

Page 1 of 5 

 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

April 15, 2014 

VIA EMAIL: 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov)

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

Re: In re ECM BioFilms, Inc., No. 9358; Expert Discovery 

Counsel, 

 We respond here to your letter of April 11, 2014 concerning ECM’s subpoenas duces 

tecum served on April 7, 2014 for Drs. Frederick, McCarthy, and Tolaymet. You object to those 

subpoenas because they seek information beyond that required to be disclosed under Rule 3.31A. 

You argue that, rather than serving subpoenas, we are limited to “deposing [your] experts” or 

obtaining information “through discovery issued to Complaint Counsel.” You explained in our 

April 8, 2014 phone call that the Commission’s strict limit on expert subpoenas is necessary to

help Complaint Counsel secure future experts by protecting them from detailed inquiries. You 

also argue that serving your experts directly would have been in error because your experts 

“serve as [your] agents for purposes of this litigation.”1

 We disagree on all points, and we find 

precedential support for the use of expert subpoenas, which includes cases you misrepresent to 

be supportive of your position. We therefore insist on full compliance with our subpoenas. Your 

compensated experts should not be entitled to greater protections than the fact witnesses in this 

 1 Per your request, we served you directly rather than issue subpoenas directly to your 

experts. However, because you contest our ability to reach expert materials through subpoenas 

duces tecum, and because your agency theory is expressly rejected by relevant case law, we may 

be obliged to serve your experts directly. 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

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

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

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

Jonathan W. Emord, Esq.

702.755.8202

jemord@emord.com

A Professional Corporation

WASHINGTON, D.C. | VIRGINIA | PHOENIX

Resp. Mot. to Compel 

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In re ECM BioFilms

April 15, 2014 

Page 2 of 5 

 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

case, and you should not be entitled to rest on speculative assertions of inconvenience to experts 

as an excuse for denying the Respondent a full and fair opportunity to defend itself.2

 At the outset, your experts are not your agents for purposes of litigation. An expert 

witness “is not the sponsoring party’s agent merely because he is retained as its expert witness.” 

Glendale Fed. Bank, F.S.B. v. U.S., 39 Fed. Cl. 422, 424 (1997). The reason for this well 

accepted premise is clear: “Despite the fact that one party retained and paid for the services of 

an expert witness, expert witnesses are supposed to testify impartially in the sphere of their 

expertise.” Kirk v. Raymark Indus., Inc., 61 F.3d 147, 164 (3d Cir. 1995) (concluding that 

“[s]ince an expert witness is not subject to the control of the party opponent with respect to 

consultation and testimony he or she is hired to give, the expert witness cannot be deemed an 

agent”). We therefore reject your opening point, finding it contrary to law. Moreover, if 

principals of agency did apply, they still would not constrain our ability to seek evidence from 

your experts directly.

Next, ECM can issue subpoenas duces tecum to experts for the purpose of investigating 

relevant areas beyond the Rule 3.31A(c) categories. The documents discoverable from expert 

witnesses, who are compensated for their time, are not limited to the information they relied on 

when forming opinions in a case. Those experts subject themselves to this process voluntarily, 

unlike the more than fifty ECM customers served with Complaint Counsel subpoenas. Personal 

conflicts and biases influence the credibility of testimony, and the rules permit subpoenas duces

tecum to reach that critical information.3

 

You listed Dr. Steven McCarthy as an expert witness in this case. You plan to have Dr. 

McCarthy testify concerning the biodegradation of plastic polymers, ASTM tests and standards, 

and ECM’s biodegradability claims. However, Dr. McCarthy has conflicts of interest that 

compromise his independence, including professional and private interests and ties with 

companies that compete directly with ECM in the market. He stands to benefit from the FTC’s 

prosecution of ECM and, so, lacks requisite impartiality. Information related to his personal and 

financial connections would not be discoverable under the limited disclosures listed in Rule 

3.31A(c). ECM cannot be so limited in its ability to defend this case, and we do not agree that 

Rule 3.31A(c) was intended as an exclusive list of discovery information (nor does the rule so 

state). To the extent you rely on experts who are beholden to ECM competitors, ECM has a right 

to explore those facts.

 2

 Complaint Counsel has served over 50 third party subpoenas on ECM customers. You 

have taken fact depositions of witnesses (e.g., Dr. Timothy Barber) that included substantive 

discussion more appropriate for expert testimony. We therefore find Complaint Counsel’s 

sudden (and legally unfounded) insistence on strict discovery limits unfounded. 

3 Because your experts are not “agents” as you suggested, we doubt that the information 

we need would be within Complaint Counsel’s custody, control, or possession. Document 

production requests are therefore inappropriate because they seek production of information 

from “another party” that is within the other party’s “possession, custody, or control...” See

Rule 3.37(a). Rather, the information we need is within your expert’s control, making a 

subpoena the most appropriate discovery mechanism.

Resp. Mot. to Compel 

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In re ECM BioFilms

April 15, 2014 

Page 3 of 5 

 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

Contrary to your representations, the caselaw is not conflicting but consistent. No rules 

(or interpretations thereof) exempt experts from subpoenas duces tecum. A subpoena duces 

tecum “is an appropriate discovery mechanism against nonparties such as a party's expert 

witness.” Expeditors Int'l of Washington, Inc. v. Vastera, Inc., 04 C 0321, 2004 WL 406999 

(N.D. Ill. Feb. 26, 2004). Although you reference Federal Rule 26, that rule directly 

contemplates the use of standard discovery methods for expert materials:

[t]he enumeration in Rule 26(a) of items to be disclosed does not 

prevent a court from requiring by order or local rule that the parties 

disclose additional information without a discovery request. Nor 

are parties precluded from using traditional discovery methods to 

obtain further information regarding these matters, as for example 

asking an expert during a deposition about testimony given in 

other litigation beyond the four-year period specified in Rule 

26(a)(2)(B).

Advisory Comm. Notes for 1993 Amends, to Fed.R.Civ.P. 26(a) (emphasis added); United States 

v. Bazaarvoice, Inc, C 13-00133 WHO (LB), 2013 WL 3784240 (N.D. Cal. July 18, 2013) 

(“Rule 26(a)(2)(B) governs only disclosure in expert reports, however, and it does not preclude 

parties from obtaining further information through ordinary discovery tools”). 

Each case you cited, including Marsh, involved subpoenas that sought information 

relating to the expert files developed for the specific case at issue. See Thomas v. Marina 

Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (noting that “the information sought pertained 

directly to one of the parties in the case”); see e.g., In re Fuller, 2013 WL 5305317, at *1–3 (D. 

Me. Sept. 18, 2013) (denying motion to compel compliance with a subpoena that requested 

documents in the “expert’s files”—namely, documents relating directly to one of the 

defendants); Ambrose v. Southworth Prod. Corp., 1997 WL 470359, at *1 (W.D. Va. June 24, 

1997) (quashing subpoena served on an expert witness that requested documents that were 

“pertaining to [an intervenor-plaintiff] or [the defendant]”); Perry v. U.S., 1997 WL 53136, at *1 

(N.D. Tex. Feb. 4, 1997) (stating that a party may not use a subpoena in order to “gain access to 

opposing expert evidence” supporting his or her opinions); Greer v. Anglemeyer, 1996 WL 

56557, at *2 (N.D. Ind. Jan. 5, 1996) (quashing subpoena served on an expert witness because 

Rule 26(b)(4) limits an opposing party’s “right of access to the evidence of experts”); Hartford 

Fire Ins. Co. v. Pure Air on the Lake Ltd. P’ship, 145 F.R.D. 202, 208 (N.D. Ind. 1993) 

(quashing subpoena served on an alleged consulting expert which sought “facts, data, and 

information obtained and known” by the consulting expert); Quaile v. Carol Cable Co., 1992 

WL 277981, at *2 (E.D. Pa. Oct. 5, 1992) (holding that a subpoena served on an expert witness 

is valid if it seeks information for impeachment and ordering the expert to respond to seven of 

eight requests in the subpoena); Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992) (quashing 

subpoenas served on expert witnesses where the subpoenas sought production of the experts’ 

“entire files related to the plaintiff”). In sum, the Courts that denied access did so because the 

requester tried to circumvent privilege and discovery rules, including the work product privilege. 

Resp. Mot. to Compel 

Exh. RX-E

PUBLIC DOCUMENT
In re ECM BioFilms

April 15, 2014 

Page 4 of 5 

 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

ECM currently does not seek information about Drs. McCarthy’s, Frederick’s and 

Tolaymet’s expert opinion in our matter sub judice, work-product communications, or attorneyclient privileged materials. To the extent that any request of ECM seeks such information that it 

is entitled to under the Commission’s Rules and Judge Chappell’s Scheduling Order, those 

authorities govern the breadth and timing of disclosure.

4

 ECM seeks material necessary to 

investigate relevant aspects of the case, including, but not limited to, bias and conflicts of 

interest. Evidence of an expert witness’s bias is relevant and discoverable. See Behler v. 

Hanlon, 199 F.R.D. 553, 557 (D. Md. 2001) (citing United States v. Abel, 469 U.S. 45, 49–52 

(1984)) (other citations omitted) (noting that “[T]he importance of credibility of witnesses to the 

trial of cases cannot be overstated, and this is especially true with respect to expert witnesses”) 

(emphasis added). ECM is accorded “very considerable latitude” into the bias of your experts. 

LNC Investments, Inc. v. First Fid. Bank, 92CIV.7584(CSH), 2000 WL 1182772 (S.D.N.Y. Aug. 

21, 2000) (Memorandum Op.). ECM’s requests of Drs. McCarthy, Frederick and Tolaymet 

investigate precisely such issues. We ask for materials and correspondence with non-parties that 

reveal their clear bias against ECM and its additive technology, that they have performed work 

relied on by the FTC for use in creating controversial sections of the Green Guides, and have 

worked for private groups that lobbied against ECM’s technology for financial gain. 

Additionally, we seek specific facts surrounding Dr. McCarthy’s patents and grants. See, e.g.,

U.S. Patent No. 5,883,199 (issued Mar. 16, 1999); Patent No. 5,439,985 (issued Aug. 8, 1995). 

In the administrative decisions you cited, the Commission neither adopted a “majority 

view,” nor suggested that ECM cannot serve expert subpoenas. See, e.g., In the Matter of Basic 

Research, No. 9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004) (discussing the scope of 

the respondent’s subpoenas, not the ability to serve them). The decision in Basic Research

supports the use of subpoenas duces tecum, particularly to the extent those subpoenas seek 

information within the scope of discovery per Rule 3.31(c)(1). Id. (denying discovery under the 

Rule 3.31(c) standard and to the extent that “Respondents have not demonstrated that [the] 

discovery is reasonably expected to yield information relevant to the allegations of the 

complaint, to the proposed relief, or to the defenses of the respondent...”). Notably, Complaint 

Counsel in the Basic Research case did not contest the use of subpoenas with experts, but only 

parts of those subpoenas. Your position is thus contrary to your own precedent. 

We reserve all rights. Your experts are obliged to produce information in response to our 

subpoenas under Rule 3.34. You are delaying production and must either answer the subpoenas 

or move for relief from them. You cannot sit idly because you are under subpoena obligations to 

produce. In the interests of cooperation, we have revised our subpoenas to further limit the 

information we seek. Our revisions should address those of your concerns that are legitimate;

 4

 When ECM originally issued its expert subpoenas, the timing for production would 

have occurred after Complaint Counsel’s experts reports were due under the then-operative 

Scheduling Order. Now, following the Second Revised Scheduling Order, to the extent ECM’s 

subpoenas overlap or seek information included within Rule 3.31A(c), that information should 

be provided under the Scheduling Order and not ECM’s subpoena. The subpoena response date 

was April 25, 2014, although we are willing to negotiate an extension given the Court’s recent 

changes to the scheduling order.

Resp. Mot. to Compel 

Exh. RX-E

PUBLIC DOCUMENT
In re ECM BioFilms

April 15, 2014 

Page 5 of 5 

 EMORD & ASSOCIATES, P.C. (202) 466-6937/FAX (202) 466-6938

WASHINGTON, D.C. | VIRGINIA | ARIZONA WWW.EMORD.COM

and the enclosed files, modified to account for the aforementioned legitimate objections, 

supersede our earlier requests.5

 

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

Lou F. Caputo 

Enclosures: (3) 

 5 We offer the revised subpoenas solely as an accommodation intended to narrow issues 

in dispute. 

Resp. Mot. to Compel 

Exh. RX-E

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-F-1 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
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 OBJECTIONS AND RESPONSES TO THE SUBPOENA 

DUCEUS TECUM TO DR. STEPHEN MCCARTHY

Pursuant to Rules 3.34 and 3.38A of the Federal Trade Commission’s Rules of Practice 

for Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s Subpoena Duces Tecum (“Subpoena”) to Dr. Stephen McCarthy 

(“Expert”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable for lack of Commission Seal. 

2. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable because it is issued directly to Complaint Counsel’s expert and not to Complaint 

Counsel. 

3. Complaint Counsel objects to the Subpoena to the extent that it calls for the 

discovery of information beyond the scope of § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. See also In the Matter of Basic Research, No. 

9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004); In re Dura Lube, No. 9292, 1999 FTC 

LEXIS 254 (F.TC. Dec. 15, 1999). 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
2 

4. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

before expert disclosures are required in accordance with § 3.31A of the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this case.

5. Complaint Counsel objects to the Subpoena to the extent that 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 information relevant to the allegations of the complaint, to the proposed 

relief, or to Respondent’s defenses. 

6. Complaint Counsel objects to the Subpoena to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

7. Complaint Counsel objects to the Subpoena to the extent that it is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive. 

8. Complaint Counsel objects to the Subpoena because the burden and expense of 

the proposed discovery outweigh its likely benefit. 

9. Complaint Counsel objects to the Subpoena to the extent it seeks information that 

is subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, 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 other applicable legal protection or privilege. 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
3 

10. Complaint Counsel objects to the Subpoena to the extent that it calls for materials 

outside the scope of discovery pursuant to Rule 3.31(c)(2).

11. By providing information in response to the Subpoena, Complaint Counsel does 

not concede that the Subpoena is valid, appropriate, or that such information is relevant, material, 

or admissible in evidence. 

12. Complaint Counsel’s objections and responses to the Subpoena are based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

13. Complaint Counsel will not produce information responsive to any request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or prosecution of this matter.

14. Complaint Counsel will not produce information responsive to any request that 

has been provided to Respondent previously at any point during the investigation or prosecution 

of this matter.

15. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 

OBJECTIONS AND RESPONSES TO SUBPOENA SPECIFICATIONS

1. All documents received or possessed before you were engaged as an expert (consulting or 

testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and 

present employee or principal of ECM, and/or the ECM additive. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
4 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Complaint Counsel will produce all responsive, non-privileged documents 

within the scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order 

and the Commission Rules. 

2. All documents, materials, correspondence, forms, marketing material, and testing used or 

referenced to form any and all opinions you may offer in this case. Production of all 

responsive materials should be submitted in accordance with the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

3. All contracts, retainers, or engagement letters between you and any public or private firm 

that manufactures and/or produces biodegradable and/or compostable products. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

beyond the scope of information to be produced under Rule 3.31A and Paragraph 19 of 

the Court’s Scheduling Order. Complaint Counsel further objects to this Request to the 

extent that it seeks information not likely to lead to relevant evidence, and to the extent 

that this unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-

(iii).

4. All reports, analyses, assessments, tests, data, summaries, and conclusions issued to any 

public or private firm that manufactures and/or produces biodegradable and/or 

compostable products concerning the biodegradability of plastics manufactured by those 

companies. 

RESPONSE: Complaint Counsel hereby incorporates by reference each General 

Objection as if set forth here in full. Complaint Counsel hereby objects to this Request to 

the extent that it seeks information not likely to lead to relevant evidence, and to the 

extent that this unlimited request is overbroad and burdensome under 16 CFR § 

3.31(c)(2)(i)-(iii). Complaint Counsel objects to this Request because it seeks 

information beyond the scope of information to be produced under Rule 3.31A and 

Paragraph 19 of the Court’s Scheduling Order. 

5. All correspondence between you and any firm that manufactures and/or produces a 

product or substance in competition generally with other biodegradable plastic products 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
5 

(to wit, ECM’s additive) concerning the biodegradability of plastics manufactured with

plastic additives. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

6. All correspondence and sections of contracts, retainers, and/or agreements with the 

University of Massachusetts, Lowell (“Umass”) concerning funding (including research 

grants) of research related to biodegradable plastics or polymers. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

7. All your pending or existing patents that involve or relate to plastics and or biodegradable 

and compostable substances, products, and technologies, including those patents for 

which you are the assignor. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

McCarthy has disclosed his complete Curriculum Vitae, which includes a list of all his 

patents. Subject to and without waiving the foregoing General and specific objections, 

Complaint Counsel will produce all responsive, non-privileged documents within the 

scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order and the 

Commission Rules.

8. All licensing or royalty agreements involving or concerning patents identified supra in 

response to Request 7, and all such agreements involving intellectual property related to 

biodegradable and compostable products. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Dr. McCarthy has disclosed his complete Curriculum Vitae, which includes a 

list of all his patents. 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
6 

9. Copies of all contracts, grant documents (including proposals) for the following research 

projects you were involved in: 

a. Metabolix, “Development of Novel of Biodegradable Materials, $1,500,196 

b. NSF Center for Biodegradable Polymer Research, $1,200,000 Industrial Members 

(8/93-present), Principal Investigator 

c. Polymer Degradation Research Center, $475,000, Industrial Members (8/89-8/93) 

d. Digital, “Plastics Materials Research”, $458,706 

e. Metabolix Inc., Performance of PHA Derived Chemicals and Polyols in 

Polyurethane, $141,465 

f. 3M, “Composting Research”, $155,000 

g. Warner Lambert, “Biodegradable Polymer Research”, $116,591 

h. National Science Foundation, “Biodegradable Polymer Research Center”, 

$110,000 (8/93-8/95) 

i. Department of the Army, “Polymer Degradation Research”, $104,000 

j. Institute for Plastics Innovation, “Injection Molding Research”, $75,000 

k. Massachusetts Centers of Excellence, “Institute for Plastics Innovation”, $75,000 

l. Metabolix Inc., Performance of Polyhydroxyalkanote Derived Chemicals and 

Polyols in Polyurethane, $71,465 

m. Battelle, “Biodegradable Packaging Development”, $59,865 

n. DuPont Corian, $50,000 

o. Invista, “Evaluation of Plasticizers”, $ 28,000 

p. Massachusetts Centers of Excellence, “Polymer Degradation Research”, $25,000 

RESPONSE: Complaint Counsel hereby incorporates by reference each General 

Objection as if set forth here in full. Complaint Counsel hereby objects to this Request to 

the extent that it seeks information not likely to lead to relevant evidence, and to the 

extent that this unlimited request is overbroad and burdensome under 16 CFR § 

3.31(c)(2)(i)-(iii). Complaint Counsel objects to this Request because it seeks 

information beyond the scope of information to be produced under Rule 3.31A and 

Paragraph 19 of the Court’s Scheduling Order. 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
7 

10. All documents concerning any testing or product evaluations involving biodegradable 

and/or compostable plastics in which you participated on behalf of, or as a member of, 

the BioEnvironmental Polymer Society and/or the Society of Plastics Engineers.

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

11. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

12. All correspondence with Dr. Ramani Narayan. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

13. All correspondence with any employee or contracting employee of O.W.S., Inc. related to 

biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

14. All correspondence (not subject to attorney client or work-product privilege and received 

before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics. 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
8 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

15. All correspondence with any witness, person, and/or consultant used to help form any 

opinion you have in this case. Production of all responsive materials should be submitted 

in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order 

in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

16. All documents revealing shares of stock or ownership interests held by you in any 

company that sells, manufactures, or markets plastics, biodegradable technologies, and/or 

compostable technologies. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

17. A listing of all consultant, executive, or corporate positions you held concerning work or 

employment related to the biodegradability of plastics over the past ten years. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Dr. McCarthy has disclosed his complete Curriculum Vitae, which includes a 

list of all his positions related to biodegradability of plastics over the past ten years.

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
9 

18. All documents and correspondence between you and the authors of the article Gómez, 

EF, Michel Jr., FC. “Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and long-term soil incubation” 

Polymer Degradation and Stability, Vol. 98 (December 2013): 2583-2591. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

McCarthy has disclosed his complete Curriculum Vitae, which includes a list of all his 

scientific publications, papers, or presentations. Subject to and without waiving the 

foregoing General and specific objections, Complaint Counsel will produce all 

responsive, non-privileged documents within the scope of Rules 3.31 and 3.31A, and in 

accordance with the Scheduling Order and the Commission Rules. 

19. Copies of all scientific publications, papers, or presentations that you authored 

concerning the rate or extent of biodegradable (including compostable) polymers when 

measured in a laboratory environment or in situ. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

McCarthy has disclosed his complete Curriculum Vitae, which includes a list of all his 

scientific publications, papers, or presentations. Subject to and without waiving the 

foregoing General and specific objections, Complaint Counsel will produce all 

responsive, non-privileged documents within the scope of Rules 3.31 and 3.31A, and in 

accordance with the Scheduling Order and the Commission Rules. 

20. All conflict of interest forms or agreements completed or signed by you in association 

with your work at the Umass, or as a testifying witness in this case. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

21. All documents concerning ASTM, including correspondence, in which you presented a 

proposal, voted on a proposal, or opposed a proposal concerning biodegradable plastics 

standards or test methods. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
10 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

22. If you have ever served as an expert in any other proceeding involving the Federal Trade 

Commission, copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. McCarthy has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

23. If you have ever served as an expert in any other legal proceeding involving plastics 

technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. McCarthy has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

Resp. Mot. to Compel 

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11 

Dated: April 25, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 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-8102B 

Washington, DC 20580

Resp. Mot. to Compel 

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12 

CERTIFICATE OF SERVICE

I hereby certify that on April 25, 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 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@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.

April 25, 2014 /s/ Katherine Johnson 

 Katherine Johnson 

Resp. Mot. to Compel 

Exh. RX-F-1

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-F-2 

Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
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 OBJECTIONS AND RESPONSES TO THE SUBPOENA 

DUCEUS TECUM TO DR. THABET TOLAYMAT 

Pursuant to Rules 3.34 and 3.38A of the Federal Trade Commission’s Rules of Practice 

for Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s Subpoena Duces Tecum (“Subpoena”) to Dr. Thabet Tolaymat 

(“Expert”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable for lack of Commission Seal. 

2. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable because it is issued directly to Complaint Counsel’s expert and not to Complaint 

Counsel. 

3. Complaint Counsel objects to the Subpoena to the extent that it calls for the 

discovery of information beyond the scope of § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. See also In the Matter of Basic Research, No. 

9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004); In re Dura Lube, No. 9292, 1999 FTC 

LEXIS 254 (F.TC. Dec. 15, 1999). 

Resp. Mot. to Compel 

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2 

4. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

before expert disclosures are required in accordance with § 3.31A of the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this case.

5. Complaint Counsel objects to the Subpoena to the extent that 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 information relevant to the allegations of the complaint, to the proposed 

relief, or to Respondent’s defenses. 

6. Complaint Counsel objects to the Subpoena to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

7. Complaint Counsel objects to the Subpoena to the extent that it is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive. 

8. Complaint Counsel objects to the Subpoena because the burden and expense of 

the proposed discovery outweigh its likely benefit. 

9. Complaint Counsel objects to the Subpoena to the extent it seeks information that 

is subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, 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 other applicable legal protection or privilege. 

Resp. Mot. to Compel 

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3 

10. Complaint Counsel objects to the Subpoena to the extent that it calls for materials 

outside the scope of discovery pursuant to Rule 3.31(c)(2).

11. By providing information in response to the Subpoena, Complaint Counsel does 

not concede that the Subpoena is valid, appropriate, or that such information is relevant, material, 

or admissible in evidence. 

12. Complaint Counsel’s objections and responses to the Subpoena are based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

13. Complaint Counsel will not produce information responsive to any request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or prosecution of this matter.

14. Complaint Counsel will not produce information responsive to any request that 

has been provided to Respondent previously at any point during the investigation or prosecution 

of this matter.

15. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 

OBJECTIONS AND RESPONSES TO SUBPOENA SPECIFICATIONS

1. All documents received or possessed before engagement as an expert (consulting or 

testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and 

present employee or principal of ECM, and/or the ECM additive. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
4 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Complaint Counsel will produce all responsive, non-privileged documents 

within the scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order 

and the Commission Rules. 

2. All documents, materials, correspondence, forms, marketing material, and testing used or 

referenced to form any and all opinions you may offer in this case. Production of all 

responsive materials should be submitted in accordance with the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

3. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

4. All correspondence with Dr. Ramani Narayan. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

5. All correspondence with any employee or contracting employee of O.W.S., Inc. related to 

biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
5 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

6. All correspondence (not subject to attorney client or work-product privilege and received 

before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

7. All correspondence with any witness, person, and/or consultant used to help form any 

opinion you have in this case. Production of all responsive materials should be submitted 

in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order 

in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rule 3.31 in the 

custody, possession, or control of Complaint Counsel in accordance with the Scheduling 

Order and the Commission Rules. 

8. A listing of all shares of stock or ownership interests held by you in any company 

associated with plastics, biodegradable products or technologies, and/or compostable 

products or technologies 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

9. Copies of all papers, articles, and presentations that you authored concerning the rates of 

biodegradation of landfilled waste, including municipal solid waste landfills, bioreactor 

landfills, and commercial composters. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
6 

Subject to and without waiving the foregoing General and specific objections, attached 

hereto as Attachment A is a true and correct copy of Dr. Tolaymat’s Curriculum Vitae, 

which includes a list of all his scientific publications, papers, or presentations, and

Complaint Counsel will produce all responsive, non-privileged documents within the 

scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order and the 

Commission Rules.

10. Copies of all papers, articles, and publications that you authored or co-authored 

concerning the anaerobic or aerobic biodegradability of plastic polymers. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, attached 

hereto as Attachment A is a true and correct copy of Dr. Tolaymat’s Curriculum Vitae, 

which includes a list of all his scientific publications, papers, or presentations. Complaint 

Counsel has produced all responsive, non-privileged documents within the scope of Rule 

3.31 in the custody, possession, or control of Complaint Counsel. 

11. All correspondence between you and Dr. Morton Barlaz concerning rates of 

biodegradation in landfills. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

12. All conflict of interest forms or agreements signed by you in association with your 

employment with the Environmental Protection Agency, or in association with this case. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

13. If you have ever served as an expert in any other proceeding involving the Federal Trade 

Commission, copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
7 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Tolaymat has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

14. If you have ever served as an expert in any other legal proceeding involving plastics 

technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Tolaymat has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

Dated: April 25, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 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-8102B 

Washington, DC 20580

Resp. Mot. to Compel 

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PUBLIC DOCUMENT
8 

CERTIFICATE OF SERVICE

I hereby certify that on April 25, 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 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@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.

April 25, 2014 /s/ Katherine Johnson 

 Katherine Johnson 

Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
Thabet Tolaymat, Ph.D. 

Curriculum Vitae (CV) 1 of 6 

Thabet M. Tolaymat Ph.D. Tolaymat.thabet@epa.gov

26 West Martin Luther King Drive 

Cincinnati Ohio, 45230 

513-457-2860 

EDUCATION

Doctorate of Philosophy in Environmental Engineering Sciences

University of Florida Gainesville, FL 2003

Masters of Engineering in Environmental Engineering Sciences

University of Florida Gainesville, FL 1997

Bachelor of Science in Environmental Engineering

University of Florida Gainesville, FL 1995

EMPLOYMENT

Interim Associate National Program Director

USEPA/ORD Cincinnati, OH 2012- October 2013

• Assist the national program director in the areas of emerging materials (e.g., nanomaterials) and 

sustainability. Responsible for setting research priority and providing resources to complete the research. 

Environmental Engineer

USEPA/ORD Cincinnati, OH September 2004-Present

• Project Lead for Solid Waste Management Systems Research

• Project Lead for Nanomaterials Research

• ORD Project Lead under Safe and Healthy Community Strategic Research Plan for Energy from Solid 

Wastes and Construction and Demolition Debris. Work in the Solid Waste Branch and conduct research in 

the area of solid waste and nanomaterials and assisting EPA HQ and Regional offices in the following 

areas:

o Performance of Solid Waste Containment Units (municipal solid waste, hazardous waste and ash 

mono-fill landfills)

o Bioreactor Landfills. New landfill design that promotes the degradation and subsequent removal 

of degradable fraction of solid waste as well as organic pollutants. 

 Subtitle D “dry tomb” lined landfill 

 Remediation of contaminated landfill at superfund sites

o Co-disposal of solid waste and hazardous waste

o Construction and demolition waste

o Metal release, mobility from contaminated wastes

• ORD Project Lead under Chemical Safety and Sustainability Strategic Research Plan for Nanomaterials. 

Leading EPA’s Office of Research and Development National Risk Management Research Laboratory in 

the area of silver nanoparticles. 

o Evaluation of the impacts of nanoparticles on human health and the environments. 

o The evaluation of the impact of environmental conditions on the fate and transport of silver 

nanoparticles. 

o The evaluation of the impact of silver nanoparticles use on waste management systems

Research Scientist (Federal Post-Doc)

USEPA/ORD Cincinnati, OH December 2003-September 2004

• Conduct Research on bioreactor technology. Research includes gathering, assimilating and assessing data 

gathered at the Outer Loop landfill. Coordinate EPA/ORD efforts with the Solid Waste Association of 

North America (SWANA) and Interstate Technology Regulatory Transfer (ITRC) to develop and distribute 

bioreactor landfill guidance document. Conduct research to examine the effectiveness of TCLP to simulate 

metal mobility in bioreactor landfills.

Graduate Research Assistant (Ph.D. Candidate)

University of Florida Gainesville, FL August 1997-December 2003

• Designed and conducted a battery of tests to evaluate risk associated with the land application of solid 

wastes. The research shed light on the appropriate use of dilution attenuation factors when assessing risk 

ATTACHMENT A Resp. Mot. to Compel 

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Thabet Tolaymat, Ph.D. 

Curriculum Vitae (CV) 2 of 6 

from ground water contamination. Carried out technical advisory group meetings with regulators (USEPA 

and FDEP), industry, and the general public. These meetings were designed to increase the understanding 

between these interested groups and direct the research to benefit the general public.

• Assisted in the design, permitting, and construction of the Polk County Bioreactor Landfill. Coordinated 

work between the Polk County landfill engineers, landfill operators, the Florida Department of 

Environmental Protection (FDEP) and fellow graduate students. Addressed design concerns that were 

raised by FDEP.

• Organized and assisted in evaluating risk from the use and reuse of chromated copper arsenate (CCA) 

treated wood. Wrote final reports and recommendations for FDEP.

Research Assistant

Applied Environmental Consulting Gainesville, FL May 1996 - August1997

• Coordinated and carried out experiments to evaluate risk associated with the exposure to naturally 

occurring radioactive material (NORM). Conducted interviews with phosphate workers to evaluate 

radiation exposure time. Assisted with drafting the final report that was submitted to the Florida Institute 

of Phosphate.

JOURNAL PUBLICATIONS

1. Jain, P., Powell, J., Smith, J., Townsend, T., Tolaymat, T., (2014) “Life-Cycle Inventory and Impact 

Evaluation of Mining Municipal Solid Waste Landfills” Environmental Science & Technology 48 (5), 2920-

2927 

2. Huang, X., El Badawy, A., Arambewela, M., Ford, R., Barlaz, M., Tolaymat, T., (2014) “Characterization of 

Salt Cake from Secondary Aluminum Production” Journal of Hazardous Materials (273):192-199

3. Ivask, A., El Badawy, A., Kaweeteerawat, C., Boren, D., Fischer, H., Ji, Z., Chang, C., Liu, R., Tolaymat, T., 

Telesca, D., Zink, J., Cohen, Y., Holden, P., Godwin, H., (2014) “Toxicity Mechanisms in Escherichia coli 

Vary for Silver Nanoparticles and Differ from Ionic Silver” ACS Nano 8 (1), 374-386 

4. Silva, T., Pokhrel, L., Dubey, B., Tolaymat, T., Maier, K., Liu, X., (2014) “Particle Size, Surface Charge and 

Concentration Dependent Ecotoxicity of Three Organo-Coated Silver Nanoparticles: Comparison Between 

General Linear Model-Predicted and Observed Toxicity” Science of The Total Environment, (468) 15:968-976,

5. Gitipour, A., El Badawy, A., Arambewela, M., Miller, B., Scheckel, K., Elk, M., Ryu, R., Gomez-Alvarez, V., 

Santo Domingo, J., Thiel, S., Tolaymat., T. (2013) “The Impact of Silver Nanoparticles on the Composting of 

Municipal Solid Waste” Environmental Science & Technology 47 (24): 14385-14393 

6. Nel etl. al., (2013) “A Multi-Stakeholder Perspective on the Use of Alternative Test Strategies for Nanomaterial 

Safety Assessment” ACSNano, (7)8:6422-6433.

7. Xu, Q., Powell, J., Tolaymat, T., Townsend, T. (2013). "Seepage Control Strategies at Bioreactor Landfills." J. 

Hazard. Toxic Radioact. Waste, 17(4), 342–350.

8. Tolaymat, T., Kim, H., Jain, P., Powell, J., and Townsend, T. (2013). "Moisture Addition Requirements for 

Bioreactor Landfills." J. Hazard. Toxic Radioact. Waste, 17(4), 360–364. 

9. El Badawy, A.; Schekel, K.; Suidan, M.; Tolaymat, T. (2013) “Key Factors Controlling the Transport of Silver 

Nanoparticles in Porous Media” Environmental Science and Technology, 2013, 47 (9), 4039–4045. 

10. Mwilu, S. K.; El Badawy, A.; Bradham, K.; Thomas, D.; Scheckel, K. G.; Tolaymat, T. M.; Ma, L.; Rogers, K. 

(2013) “Changes in Silver Nanoparticles Exposed to Human Synthetic Stomach Fluid: Effects of Particle Size 

and Surface Chemistry” Science of the Total Environment, (447): 90-98. 

11. Tolaymat, T.; El Badawy, A.; Carson, D. (2013) “Estimate of the Decay Rate Constant of Hydrogen Sulfide 

from Drywall in a Simulated Bench-Scale Study. J. Environ. Eng. (139): 538-544.

12. Kim R. Rogers, K., Bradham, K., Tolaymat, T., Thomas, D., Hartmann, T., Ma, L., Williams, A. (2012) 

“Alterations in Physical State of Silver Nanoparticles Exposed to Synthetic Human Stomach Fluid” Science of 

the Total Environment. (420):334-339.

13. Pokhrel, L., Silva, T., Dubey, B., Elbadawy, A., Tolaymat., T. (2012) “Rapid Screening of Aquatic Toxicity of 

Metal-Based Nanoparticles Using the MetPLATE Assay” Science of the Total Environment. (426):414-422.

ATTACHMENT A Resp. Mot. to Compel 

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PUBLIC DOCUMENT
Thabet Tolaymat, Ph.D. 

Curriculum Vitae (CV) 3 of 6 

14. El Badawy, A., Scheckel, K., Suidan, M., Tolaymat, T. (2012) “The Impact of Stabilization Mechanism on the 

Aggregation Kinetics of Silver Nanoparticles” Science of the Total Environment. (429):325-331.

15. El Badawy, A., Scheckel, K., Suidan, M., Tolaymat, T. (2011) “Surface Charge-Dependent Toxicity of Silver 

Nanoparticles” Environmental Science and Technology (45)1:283-287.

16. Costanza, J., El Badawy, A., Tolaymat, T. (2011) “Comment on 120 Years of Nanosilver History: Implications 

for Policy Makers” Environmental Science and Technology. (45)17:7591-7592

17. Jain, P., Townsend, T., Tolaymat T., (2010) “Steady-State Design of Vertical Wells for Liquids Addition at 

Bioreactor Landfills” Waste Management. (30)11:2022-2029.

18. Jain, P., Townsend, T., Tolaymat T., (2010) “Steady-State Design of Horizontal Wells for Liquids Addition at 

Bioreactor Landfills” Waste Management. (30)12:2560-2569.

19. Bareither, C., Benson, C., Barlaz, M., Edil, T., Tolaymat, T. (2010) “Performance of North American 

Bioreactor Landfills. I: Leachate Hydrology and Waste Settlement” J. Environmental Engineering-ASCE. 

(136)8:824-838

20. Barlaz, M., Bareither, C., Hossain, A., Saquing, J., Mezzari, I., Benson, C., Tolaymat, T., Yazdani, R. (2010) 

“Performance of North American Bioreactor Landfills. II: Chemical and Biological Characteristics” J. 

Environmental Engineering-ASCE. (136)8:839-853

21. Genaidy, A., Sequeira, R., Tolaymat, T., Kohler, J., Wallace, S., Rinder, M. (2010) “Integrating Science and 

Business Models of Sustainability for Environmentally-Challenging Industries such as Secondary Lead 

Smelters: A Systematic Review and Analysis of Findings”. J. Environmental Management. (91)9:1872-1882

22. Musson, S., Campo, P., Tolaymat, T., Suidan, S., Townsend, T., (2010) “Assessment of the Anaerobic 

Degradation of Six Active Pharmaceutical Ingredients” Science of The Total Environment, (38)9: 2068-2074

23. Jang, Y., Jain, P., Tolaymat, T., Dubey, B., Singh, S., Townsend, T. (2010) “Characterization of Roadway 

Stormwater System Residuals for Reuse and Disposal Options” Science of the Total Environment. 

(407)12:3686-3701

24. Tolaymat, T., Green, R.,Hater, G., Barlaz, M., Black, P., Bronson, D., Powell, J. (2010) “Evaluation of Landfill 

Gas Decay Constant for Municipal Solid Waste Landfills Operated as Bioreactors” J. Air & Waste Management 

Association. (60)1:91-97

25. Tolaymat, T., El Badawy, A., Genaidy, A., Scheckel, K., Luxton, T., Suidan, M. (2010) “An Evidence-Based 

Environmental Perspective of Manufactured Silver Nanoparticle in Syntheses and Applications: A Systematic 

Review and Critical Appraisal of Peer-Reviewed Scientific Papers” Science of the Total Environment. 

(408)5:999-1006

26. Scheckel, K., Luxton, T., El Badawy, A., Impellitteri, C., Tolaymat, T. (2010) “Synchrotron Speciation of 

Silver and Zinc Oxide Nanoparticles Aged in a Kaolin Suspension” Environmental Science and Technology. 

(44)4:1307-1312

27. El Badawy, A. Luxton, T., Silva, R., Scheckel, K., Suidan, M., Tolaymat, T. (2010) “Impact of Environmental 

Conditions (pH, Ionic Strength, and Electrolyte Type) on the Surface Charge and Aggregation of Silver 

Nanoparticles Suspensions” Environmental Science and Technology. (44)4:1260-1266

28. Tolaymat, T., Al-Abed, S., Jegadeesan, G. (2009) “Impact of Bioreactor Landfill Leachate Quality on As, Cd, 

Pb and Zn Leaching from Mine Residues” J Residuals Science & Technology (6)2: 89-96

29. Impellitteri, C., Tolaymat, T., Scheckel, K., (2009) “The Speciation of Silver Nanoparticles in Antimicrobial 

Fabric before and after Exposure to a Hypochlorite/Detergent Solution” J. Environmental Quality. (38) 4:1528-

1530

30. Genaidy, A., Tolaymat, T., Sequeira, R. (2009) “Health Effects of Exposure to Carbon Nanofibers: Systematic 

Review, Critical Appraisal, Meta Analysis and Research to Practice Perspectives” Science of the Total 

Environment. (407) 12:3686-3701

ATTACHMENT A Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
Thabet Tolaymat, Ph.D. 

Curriculum Vitae (CV) 4 of 6 

31. Genaidy, A., Sequeira, R., Tolaymat, T., Kohler, J., Rinder, M. (2009) “Evidence-Based Integrated 

Environmental Solutions for Secondary Lead Smelters: Pollution Prevention and Waste Minimization 

Technologies and Practices” Science of the Total Environment. (407)10:3239-3268

32. Jang, Y., Jain, P., Tolaymat, T., Dubey, B., Townsend, T. (2009) “Characterization of Pollutants in Florida 

Street Sweepings for Management and Reuse” J. Environmental Management. (91)2:320-327

33. Tolaymat, T., Dubey, B., Townsend, T. (2008) “Assessing risk posed by land application of ash from the 

combustion of wood and tires” J. Residuals Scinece & Technology. (5) 2:61-75.

34. Jjemba, P., Morris, B., Tolaymat, T. (2008) “Specific Energy Output from Urban Residues Degraded with 

Leachate and an Off-Specification Industrial Carbonated Beverage as Moisture Sources” Biomass and 

Bioenergy (32)1:51-59

35. Genaidy, A., Sequeira, R., Tolaymat, T., Kohler, J., Rinder, M.(2008) “An Exploratory Study of Lead 

Recovery in Lead-Acid Battery Lifecycle in US Market: An Evidence-Based Approach” Science of the Total 

Environment (407)1:7-22

36. Al-Abed, S., Jegadeesan, G., Scheckel, K., Tolaymat, T. (2008) “Speciation, Characterization, and Mobility of 

As, Se, And Hg in Flue Gas Desulphurization Residues” Environmental Science & Technology. (42)5: 1693-

1698

37. Townsend, T., Dubey, B., Tolaymat, T. (2006). “Interpretation of SPLP Results for Assessing Risk to 

Groundwater from Land-Applied Granular Waste” Environmental Engineering Science. (23)1:239-251

38. Williams, A., Scheckle, K., Tolaymat, T., Impellitterie, C. (2006)”Mineralogy and Characterization of Arsenic, 

Iron, and Lead in a Mine Waste-Derived Fertilizer” Environmental Science and Technology. (40)16:4874-4879

39. Stook, K., Tolaymat, T., Ward, M., Dubey, B., Townsend, T., Solo-Gabriele, H., Bitton, B. (2005). "Relative 

Leaching and Aquatic Toxicity of Pressure-Treated Wood Products Using Batch Leaching Tests." 

Environmental Science & Technology, 39(1), 155-163.

40. Jain, P., Jang, Y., Tolaymat, T., Witwer, M., Townsend T. (2005)“Recycling of Water Treatment Sludge Via 

Land Application: Assessment of Risk” J. Residuals Science and Technology 2(1):16-20

41. Townsend, T., Dubey, B., Tolaymat, T., Solo-Gabriele, H. (2005). "Preservative Leaching from Weathered 

CCA-Treated Wood." J. Environmental Management, 75(2), 105.

42. Townsend, T., Tolaymat, T., Leo, K., Jambeck, J. (2004). "Heavy Metals in Recovered Fines from 

Construction and Demolition Debris Recycling Facilities in Florida." Science of The Total Environment, 332(1-

3)

43. Townsend, T., Tolaymat, T. Solo-Gabriele, H., Dubey, B., Stook, K., wadanambi, L.(2004). "Leaching of 

CCA-Treated Wood: Implications for Waste Disposal." J. Hazardous Materials, 114(1-3), 75. 

44. Iida, K., Pierman, J., Tolaymat, T., Townsend, T., Wu, C. (2004).”Control of Heavy Metal Emissions and 

Leaching from Incineration of CCA-Treated Wood Using Mineral Sorbents.” J. Environmental Engineering, 

ASCE. 1302(2), 184-192.

45. Townsend, T., solo-Gabriele, H., Tolaymat, T., Stook, K., Hosein, N. (2003). “Chromium, Cooper and Arsenic 

Concentrations in Soil Underneath CCA-Treated Wood Structures.” Soil and Sediment Contamination. 12(6), 

779-798.

46. Townsend, T., Solo-Gabriele, H., Tolaymat, T., Stook, K. (2003). "Impact of Chromated Copper Arsenate 

(CCA) in Wood Mulch." The Science of the Total Environment, 309(1-3), 173-185. 

47. Tolaymat, T., Townsend, T., Solo-Gabriele, H. (2000) “Chromated Copper Arsenate-Treated Wood in 

Recovered Wood.” Environmental Engineering Science 17(1):19-28.

EPA REPORTS

1. Tolaymat, T., Kremer, F., Carson, D., Davis-Hoover, W. Monitoring Approaches For Bioreactor Landfills.

U.S. Environmental Protection Agency, National Risk Management Research Laboratory. Cincinnati, OH

EPA/600/R-04/301, 2004. 

ATTACHMENT A Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
Thabet Tolaymat, Ph.D. 

Curriculum Vitae (CV) 5 of 6 

2. Meer, S., Benson, C., Tolaymat, T., Carson, D. In-Service Hydraulic Conductivity Of GCLs In Landfill Covers 

- Laboratory And Field Studies. U.S. Environmental Protection Agency, National Risk Management Research 

Laboratory. Cincinnati, OH, EPA/600/R-05/148, 2005.

3. Tolaymat, T. Landfill Bioreactor Performance, Second Interim Report. U.S. Environmental Protection Agency, 

National Risk Management Research Laboratory. Cincinnati, OH, EPA/600/R-07/060, 2007.

4. Peggs, I., Tolaymat, T. Non-Destructive Evaluation of Geomembrane Seam Bond Strength. U.S.

Environmental Protection Agency, National Risk Management Research Laboratory. Cincinnati, OH, 

EPA/600/R-09/070, 2009. 

5. Benson, C., Barlaz, M., Tolaymat, T. Bioreactor Landfills State-Of-The Practice Review. U.S. Environmental 

Protection Agency, National Risk Management Research Laboratory. Cincinnati, OH, EPA/600/R-09/071, 

2009.

ADJUNCT APPOINTMENTS/CONSULTANCY

• Adjunct professor at East Tennessee State University

• Executive board member at the Florida Center for Solid and Hazardous Waste Management

• Solid waste expert witness for Ohio EPA, 2006

• Solid waste consultant to the World Bank

• Solid waste consultant to USAID

AWARDS

• U.S. EPA Science Achievement Award in 2010 for service at the Salt River Regional Landfill awarded by 

EPA

• U.S. EPA Bronze Medal for Commendable Service in 2007 for service after hurricane Katrina awarded by 

EPA

• U.S. EPA Bronze Medal for Commendable Service in 2010 for service at the Fort Deveins Superfund Site 

awarded by ORD

• U.S. EPA Bronze Medal for Commendable Service in 2010 for service at the County Wide Landfill 

awarded by Region 5

• Level III Scientific and Technological Achievement Award 2007

• U.S. EPA/ORD Superior Accomplishment award every year between 2004 and 2010

INVITED PRESENTATION AND WORKSHOPS

• Developed and taught the Interstate Technology Regulatory Council (ITRC) bioreactor landfill internet 

training course in 2006

• Develop web content about bioreactor landfills in 2007 with the Hinkley Center for Solid and Hazardous 

Waste Management and the University of Florida (see http://www.bioreactor.org)

• Develop 2-day workshops on bioreactor landfills to for EPA Regions 5, 6, and 7 between 2005 and 2006

• Develop and coordinate bioreactor landfill section of Solid Waste Association of North America (SWANA) 

symposium in 2007. 

• Developed a bioreactor landfill workshop for the World Bank October, 2007.

• Invited by Taiwan Environmental Protection Agency to organize and host an international workshop in 

2005 and 2008.

• Environmental Factors and Surface Properties of Nanoparticles Governing Their Fate, Reactivity, and 

Mobility. Presented at 10th International Conference on the Biogeochemistry of Trace Elements, 

Chihuahua, MEXICO, July 13 - 18, 2009

• Monitoring Guidance for Bioreactor Landfills. Presented at SWANA Bioreactor Meeting, San Antonio, 

TX, March 22 - 25, 2005.

• Mercury Speciation In FGD: Assessing Transport And Bioavailability Risk. Presented at Research and 

Demonstration of Agricultural Uses of Gypsum and Other FGD Materials Workshop, St. Louis, MO, 

September 12 - 14, 2006.

• Metal Speciation in Soil, Sediment, and Water Systems Via Synchrotron Radiation Research. Presented at 

EPA Science Forum, Washington, DC, May 16 - 18, 2005.

ATTACHMENT A Resp. Mot. to Compel 

Exh. RX-F-2

PUBLIC DOCUMENT
Thabet Tolaymat, Ph.D. 

Curriculum Vitae (CV) 6 of 6 

• Bioreactor Landfill Design. Presented at EPA Region 5 Bioreactor Landfill Workshop, Chicago, IL, 

September 27, 2005.

• Monitoring Approaches for Bioreactor Landfills. Presented at EPA Region 5 Bioreactor Landfill 

Workshop, Chicago, IL, September 27, 2005.

• Bioreactor Landfills, Theoretical Advantages And Research Challenges. Presented at EPA Region 5 

Bioreactor Landfill Workshop, Chicago, IL, September 27, 2005.

• Waste Stabilization Fundamentals For Bioreactor Landfills. Presented at EPA Region 5 Bioreactor Landfill 

Workshop, Chicago, IL, September 27, 2005.

EXTERNAL RESEARCH GRANTS

 Waste Management Inc. (WM) bioreactor landfill $200K in-kind per year (2001-present) 

 EPA’s Office of Solid Waste (OSW) “Fee for Service” $150K (2005)

 ORD’s national nanomaterials research initiative $480K (2007)

 Environmental Education and Research Foundation bioreactor landfill research $40K (2007)

 Environmental Education and Research Foundation bioreactor landfill research $40K (2007)

 Regional Applied Research Effort (RARE) R5 $50k per year for two years (2008-2009)

 Regional Applied Research Effort (RARE) R10 $110k (2008)

 Environmental Research and Education Foundation secondary aluminum processing waste research $186K 

(2009)

 Aluminum Association secondary aluminum processing waste research $186 (2009)

 U.S. AID/Jordan the remediation of a phosphate mining site in Amman, Jordan $5,000K (2010)

ATTACHMENT A Resp. Mot. to Compel 

Exh. RX-F-2

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RESPONDENT 

EXHIBIT 

RX-F-3 

Resp. Mot. to Compel 

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PUBLIC DOCUMENT
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 OBJECTIONS AND RESPONSES TO THE SUBPOENA 

DUCEUS TECUM TO DR. SHANE FREDERICK

Pursuant to Rules 3.34 and 3.38A of the Federal Trade Commission’s Rules of Practice 

for Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s Subpoena Duces Tecum (“Subpoena”) to Dr. Shane Frederick

(“Expert”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable for lack of Commission Seal. 

2. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable because it is issued directly to Complaint Counsel’s expert and not to Complaint 

Counsel. 

3. Complaint Counsel objects to the Subpoena to the extent that it calls for the 

discovery of information beyond the scope of § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. See also In the Matter of Basic Research, No. 

9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004); In re Dura Lube, No. 9292, 1999 FTC 

LEXIS 254 (F.TC. Dec. 15, 1999). 

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2 

4. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

before expert disclosures are required in accordance with § 3.31A of the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this case.

5. Complaint Counsel objects to the Subpoena to the extent that 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 information relevant to the allegations of the complaint, to the proposed 

relief, or to Respondent’s defenses. 

6. Complaint Counsel objects to the Subpoena to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

7. Complaint Counsel objects to the Subpoena to the extent that it is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive. 

8. Complaint Counsel objects to the Subpoena because the burden and expense of 

the proposed discovery outweigh its likely benefit. 

9. Complaint Counsel objects to the Subpoena to the extent it seeks information that 

is subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, 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 other applicable legal protection or privilege. 

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10. Complaint Counsel objects to the Subpoena to the extent that it calls for materials 

outside the scope of discovery pursuant to Rule 3.31(c)(2).

11. By providing information in response to the Subpoena, Complaint Counsel does 

not concede that the Subpoena is valid, appropriate, or that such information is relevant, material, 

or admissible in evidence. 

12. Complaint Counsel’s objections and responses to the Subpoena are based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

13. Complaint Counsel will not produce information responsive to any request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or prosecution of this matter. 

14. Complaint Counsel will not produce information responsive to any request that 

has been provided to Respondent previously at any point during the investigation or prosecution 

of this matter.

15. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 

OBJECTIONS AND RESPONSES TO SUBPOENA SPECIFICATIONS

1. All documents received or possessed before engagement as an expert (consulting or 

testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and 

present employee or principal of ECM, and/or the ECM additive. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. to Compel 

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4 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Complaint Counsel will produce all responsive, non-privileged documents 

within the scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order 

and the Commission Rules. 

2. All documents, materials, correspondence, forms, marketing material, and testing used or 

referenced to form any and all opinions you may offer in this case. Production of all 

responsive materials should be submitted in accordance with the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

3. Regardless of the date, all sections of contracts, retainers, and/or agreements with Yale 

University concerning conflicts of interest and/or supplemental employment (such as 

consultation services in litigation). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

4. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

5. All correspondence with Dr. Ramani Narayan. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

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5 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

6. All correspondence (not subject to attorney client or work-product privilege and received 

before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

7. All correspondence with any witness, person, and/or consultant used to help form any 

opinion you have in this case. Production of all responsive materials should be submitted 

in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order 

in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

8. A listing of all shares of stock or ownership interests held by you in any company 

associated with plastics, biodegradable products or technologies, and/or compostable 

products or technologies 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

9. All documents, including papers, articles, dissertations, and publications that you 

authored, co-authored, or contributed to or that concerned work related to marketing 

research (including consumer perception) of trade consumers, e.g., corporate entities, 

distributors, wholesalers, etc., as opposed to end-consumers. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

Resp. Mot. to Compel 

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6 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

Frederick has disclosed his Curriculum Vitae, which includes a list of all his scientific 

publications, papers, or presentations. Subject to and without waiving the foregoing 

General and specific objections, Complaint Counsel will produce all responsive, nonprivileged documents within the scope of Rules 3.31 and 3.31A, and in accordance with 

the Scheduling Order and the Commission Rules. 

10. Since January 1, 1999, copies of all papers, articles, dissertations, and publications 

authored by you that concern consumer perception that may help form your opinions and 

conclusions in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in 

this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information required to be 

produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling Order. 

Complaint Counsel therefore objects to this Request because it unilaterally changes the 

scheduling order and advances Complaint Counsel’s deadline for production of Rule 

3.31A(c) expert information by two months. The Scheduling Order dictates the time and 

manner of production for information covered by this Request. Subject to and without 

waiving the foregoing General and specific objections, Dr. Frederick has disclosed his 

Curriculum Vitae, which includes a list of all his scientific publications, papers, or 

presentations and Complaint Counsel will produce all responsive, non-privileged 

documents within the scope of Rules 3.31 and 3.31A, and in accordance with the 

Scheduling Order and the Commission Rules.

11. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and transcripts (deposition, 

hearing and trial) involving you in your professional capacity, along with all orders 

issued by the courts in those proceedings. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

12. All conflict of interest forms or agreements signed by you. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. to Compel 

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7 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

13. If you have ever served as an expert in any other proceeding involving the Federal Trade 

Commission, copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Frederick has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

14. If you have ever served as an expert in any other legal proceeding involving plastics 

technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

15. RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Frederick has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Expert has not previously served as an expert.

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Dated: April 25, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 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-8102B 

Washington, DC 20580

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CERTIFICATE OF SERVICE

I hereby certify that on April 25, 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 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@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.

April 25, 2014 /s/ Katherine Johnson 

 Katherine Johnson 

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News

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Today@UMass Lowell

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More Than $2.5 Million in Funded Research Conducted

06/30/2010

By Edwin L. Aguirre

UMass Lowell recently hosted a reception

for Metabolix/Telles to celebrate the

company’s 15 years of sponsored

research and licensing partnership with

the University. More than 30 students,

faculty, University administrators and

company officers attended the gathering,

which was held at the newly renovated

UMass Lowell Bellegarde Boathouse.

Attendees included Chancellor Marty

Meehan, Executive Vice Chancellor

Jacqueline Moloney, Administration and Finance Vice Chancellor Joanne

Yestramski, Provost Ahmed Abdelal and Engineering Dean John Ting as well

as Metabolix/Telles President and CEO Richard Eno, Chief Scientific Officer

Oliver Peoples, Telles General Manager Robert Engle and Strategy &

Commercial Development Vice President Johan van Walsem.

In his welcome remarks, Meehan thanked Metabolix/Telles for its support

through the years.

“Bioplastics and green technology are important to the future of the

University and the new Emerging Technologies and Innovation Center being

built on campus,” he said.

“We are very pleased with our partnership with UMass Lowell,” said Eno. “It

is one of the best universities in the country.”

Cambridge-based Metabolix is an innovation-driven bioscience company

focused on providing sustainable solutions for the world’s needs for plastics,

chemicals and energy. For example, the company is now developing and

commercializing MirelTM bioplastics, a renewable and biodegradable

alternative to petroleum-based plastic made from sugarcane.

“Research in bioplastics is vital to UMass Lowell,” said plastics engineering

Prof. Stephen McCarthy. “Metabolix located the headquarters of Telles in

Lowell because of its partnership with the University.”

McCarthy said Metabolix has funded more than $2.5 million in sponsored

research with UMass Lowell and more than 50 students for their master's and

doctorates. It has also donated more than a half million dollars’ worth of

bioplastic processing equipment.

“Metabolix has licensed UMass Lowell patents for bioplastic blends, with

potential royalties of $100,000 a year,” said McCarthy.

Chancellor Marty Meehan,

center, Prof. Stephen McCarthy,

second from right, and Executive

Vice Chancellor Jacqueline

Moloney, far right, with executives

from Metabolix/Telles.

UMass Lowell, Metabolix/Telles Celebrate

Partnership

Home > News > Metabolix_celebration

Home Directory Calendar Libraries Offices/Services Maps Plan an Event Jobs Email iSiS Blackboard

Prospective Students Current Students Faculty/Staff Alumni/Friends Community Media Support UML

ABOUT ACADEMICS RESEARCH ADMISSIONS & AID STUDENT LIFE ATHLETICS & RECREATION

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University Relations - Cumnock Hall, 31 University Ave., Lowell, MA 01854 

Phone: 978-934-3224 Fax: 978-934-3033 Contact Us

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From: Brian Igoe

To: jfrankle@ftc.gov

Cc: Kristi Guillemette; Steve Mojo

Subject: FW: Good Earth and ECM

Date: Thursday, June 26, 2008 4:55:47 PM

Attachments: goodearthproductclaims.pdf

ECM Exhibits July 17.pdf

Comments on ECM Documents Fnal.pdf

Dear Janice,

Please check out the claims this company is making about a microbial additive to traditional plastics, including PVC and

EPS which makes them biodegradable and harmless to the environment. http://www.goodearthpkg.com/ It is clear they

are making vague and intentionally deceptive claims about environmental benefits and ASTM certifications with no

corroborative data. This is a clear violation of the FTC guidelines for environmental marketing claims. Also, in the Good

Earth “Certification” section on their website they reference ASTM 5338, which is a test method (which yields a rate of

mineralization), and not a certification. 

I am attaching copies of Good Earth and ECM’s selling materials and some comments from the Bioplastic Products

Institute regarding the material. When you review the Good Earth PPT presentation (on their website), and ECM’s material

you’ll see these products use ECM’s additive technology. Most of the photos in the powerpoint document on the Good

Earth website (and signatures) match that of the ECM info attached.

I hope this helps in your pursuit of false claims by these companies.

Sincerely,

Brian Igoe

Brian Igoe

VP and Chief Brand Officer

978-513-1850

CONFIDENTIALITY NOTICE:

This message is intended for the use of the individual or entity to which it is addressed and may contain

information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this

message is not the intended recipient or the employee or agent responsible for delivering this message to the

intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is

strictly prohibited. If you have received this communication in error, please notify us immediately by email reply or

by telephone and immediately delete this message and any attachments.

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January 30, 2008 

Federal Trade Commission 

Office of the Secretary 

Room H-135 (Annex B) 

600 Pennsylvania Ave, NW 

Washington, D.C. 20580 

RE: Green Guides Regulatory Review, 16 CFR Part 260, Comment, 

Project No. P954501 

To Whom It May Concern: 

This provides the comments of the Biodegradable Products Institute (BPI) with regards 

to the FTC’s Environmental Marketing Guides. 

The BPI is a multi-stakeholder trade association, involving people and companies that 

produce, use or recover compostable products. The BPI strongly supports the recovery 

of organic materials via composting and many of the members are actively involved in 

the production of materials from renewable feedstocks. All BPI approved products meet 

stringent scientifically based standards for compostability. Currently the organization has 

42 members including leading suppliers of compostable resins, compostable bags, 

compostable food service items and compostable packaging. Member organizations 

include BASF, NatureWorks LLC, Metabolix, Novamont, Cereplast, BiobagUSA, Heritage 

Bag and Poly-America. The BPI’s “Compostable Logo” is used by organizations in the US, 

Canada, China, Australia, Europe and Brazil. Moreover, it is recognized by composting 

facilities from San Francisco to Prince Edward Island. Also the BPI’s efforts are 

recognized by the US EPA and the Canadian Plastics Industry Association. A complete 

list of BPI approved products and members can be found on our website: 

www.bpiworld.org. 

It is important to note that membership in the BPI has grown dramatically over the past 

couple years. I believe that our membership growth parallels the increasing interest in 

environmental claims driven in part by Wal-Mart’s Sustainable Packaging Program and 

increased awareness in global warming. In concert with this interest in the environment, 

the BPI has seen an increasing level of “biodegradable” claims, especially in landfills. 

These are largely unsupported by conclusive scientific data and importantly lead 

consumers to believe that “biodegradation” in landfills is an environmental benefit, when 

it is not. Appendix 1 is a recent example of this trend (Jan 14, 2008 Dispoz-o Plate Press 

Release). 

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Overall Comments: 

The BPI and its members believe that the current FTC Environmental Marketing Guides 

have provided significant direction to manufacturers since they were first developed in 

the early 1990’s. Moreover, the BPI fully supports the overall directions of the Guides, 

especially the reliance on sound science to support claims. However, since the last 

revision in the Guides in the late 1990’s, there have been two developments that should 

be incorporated in your next revision, pertaining to the definitions for “biodegradable” 

and “compostable”. 

1. The American Chemistry Council (ACC) fielded a national survey to better 

understand consumer attitudes with regards to the terms “biodegradable” and 

“compostable” and “renewable” in September 2006. Over 1000 consumers were 

surveyed in a statistically sound manner. This study, one of the first that I am 

aware of, probes consumers’ knowledge of these terms. The ACC and BPI have 

already discussed the findings of this work with the FTC and provided a complete 

copy of the results and questionnaire1

. I will reference the relevant sections of 

this work in this letter and attach a copy of presentation from 2007. 

2. Development of two specifications by the American Society of Testing and 

Materials (ASTM) that speak to the identification of compostability of plastics and 

plastic coated paper products. These 2 specifications are 

o ASTM D6400: “Standard Specification of Compostable Plastics” 

o ASTM D6868: “Standard Specification for Biodegradable Plastics Used as 

Coatings on Paper and Other Compostable Substrates” 

Products meeting these specifications are in commerce today. They are being 

processed by the growing number of professionally managed composting 

facilities throughout North America and Europe today. Moreover, the ASTM 

Specifications are similar to those used in Europe and its key requirements will 

be incorporated in the ISO standard now under development (#17088). 

The BPI’s comments will focus on the terms in the current Guides: “biodegradable”, 

“compostable” and “degradable as well as the terms relating to “renewable or biobased 

content”. 

 

“Biodegradable” Comments: 

Based on the ACC’s research, most consumers do not really understand the scientific 

process behind biodegradation. Rather, they believe that something that is labeled as 

“biodedgradable” will somehow disappear into nothing within a year, regardless of 

location. Quoting from the report’s findings: 

• “For most people, this term (“biodegradable”) means that the material is able to 

decompose or break down naturally (on its own). 

• Most people believe the material would break down in 1 year or less. 

 

1

 Email correspondence to J. Frankle Podoll FTC) from J. Killinger (ACC) on June 25, 2007. 

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• One key attribute assigned to biodegradable by most people is that when it 

breaks down the material disappears completely - there is nothing left behind. 

When asked how long something should take to “biodegrade”, 60% of the respondents 

stated a year or less. 

Further, over 80% of the people surveyed believed that “biodegradable” products would 

break down in a landfill or in the natural environment. 

 

Given this level of consumer understanding, the BPI recommends 

1) The term “biodegradable” should have a separate definition from that of 

‘degradable’ and ‘photodegradable’. Consumers expect that a ‘biodegradable’ 

material will be totally eliminated from the environment. The only way that this 

can be accomplished is via microbial assimilation, where these products are used 

as a food source. 

Conversely, ‘degradable’ and ‘photodegradable’ are forms of fragmentation, where 

the polymers become friable, yet remain in the environment. While each has value, 

the end result of the process differs from what occurs during biodegradation. 

2. The FTC should reinforce returning “entirely to products found in nature” and 

cite a specific timeframe for the process. The BPI has seen claims from 

manufacturers, whose materials achieve an overall 5% rate of biodegradation 

and their sales literature states that it will “Fully biodegrade in 9 months to 5 

years” or “Fully biodegrade wherever it is disposed”. These materials have been 

sent to the FTC2

 

ASTM has developed tests, which conclusively measure the rate and extent of 

biodegradation, for major solid waste disposal avenues, including composting, soil 

burial and even landfilling. These should be referenced as part of any new 

definitions. 

3. It is recommended that the FTC reinforce the limited environmental benefits of 

landfilling “biodegradable” products. Work conducted and published by Prof. 

William Rathje in the 1980’s & 90’s demonstrated that readily biodegradable 

materials, such as food scraps and newspapers, remain in landfills for many 

years if not decades. Further, the US EPA’s Solid Waste Hierarchy establishes 

landfilling and incineration as the least desirable forms of disposal. Manufacturers 

should be discouraged from claiming that “biodegradation” is the panacea to 

solid waste disposal, when their products are landfilled. 

With these factors in mind, the BPI recommends that the FTC definition for 

“biodegradable” be revised to read: 

An unqualified claim that a product or package is biodegradable should be 

substantiated by demonstrating that the entire product or package can be 

 

2

 Email correspondence to Janice Frankle Podoll (FTC) from Steve Mojo (BPI) on July 17, 2007 

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completely converted to carbon dioxide, methane, water and biomass via 

microbial assimilation within 12-18 months by using the appropriate ASTM Test 

Methods which reflect customary disposal conditions. A claim is deceptive if it 

leads consumers to believe that there is an benefit provided when the product is 

disposed of in a landfill. 

Additionally the FTC should create an example under the definition to address 

biodegradable claims for products that are normally landfilled. 

Example 1 

A trash bag is marketed as “biodegradable”. The marketer relies on soil burial 

tests to show that the product will decompose in the presence of water and 

oxygen. The trash bags are customarily disposed of in incineration facilities or at 

sanitary landfills that are managed in a way that inhibits biodegradation by 

minimizing moisture and oxygen. Biodegradation is irrelevant for those trash 

bags that are incinerated and, for those disposed of in landfills. Also, the 

marketer does not possess adequate substantiation that the bags will completely 

biodegrade in 12 to 18 months, using ASTM Test Methods, which replicate 

landfill conditions. The claim is therefore deceptive. 

“Compostable” Comments: 

According to the ACC research, consumers view compostable materials as ones that are 

able to be returned to the soils after composting as a useful soil amendment. 

• “Compostable” means that the material can be put back into the ground to make 

soil, mulch, or fertilizer that can be used in a garden or around your home. 

• The chief attribute of compostable materials is that the decomposition is 

beneficial to the earth. This stands in opposition to biodegradable material which 

most believe disappears completely. 

• Compostable materials are natural or organic materials and include leaves, twigs, 

grass clippings, food products (fruit peels, vegetable parts, etc.) and other 

materials. 

• These materials are expected to break down and be usable in a matter of 

months (3 months to a year). 

Consumer perceptions are in line with the requirements found in the 2 ASTM 

Specifications that are in place today. 

Specifically ASTM D6400 and D6868 include criteria which insures that materials will 

disintegrate rapidly; biodegrade completely within a 6-12 months; do not harm the 

resulting compost and do not introduce unwanted levels of regulated metals. Products 

that meet these specifications are being successfully composted in professionally 

managed, large scale facilities, as our found in the US, Canada and Europe. Importantly, 

ASTM D6400 and D6868 are consistent with specifications in Europe as well as those 

under development by ISO. 

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Additionally, these ASTM specifications are recognized by the US Environmental 

Protection Agency, on its Organics page found at the link below: 

http://www.epa.gov/epaoswer/non-hw/organics/reduce.htm

Quoting from the website: 

“Biodegradable and Compostable Plastics 

Plastic products are items you use everyday like bags, bottles, packaging, and 

containers. Conventional plastics used for these products include HDPE, PET, and 

LDPE. These plastics can be easily reused or recycled. 

Other materials that have been developed are biodegradable and compostable 

plastics. This type of packaging will safely disintegrate and biodegrade in a wellmanaged composting site. Many, but not all, of these materials are produced 

from renewable resources (i.e. corn, switch grass, grain). 

Two specifications that identify plastics as biodegradable and compostable have 

been developed by the American Society for Testing and Materials: 

• ASTM D6400 (Standard Specification for Compostable Plastics) and 

• ASTM D6868 (Standard Specification for Biodegradable Plastics Used as 

Coatings on Paper and Other Compostable Substrates). 

Composting biodegradable or compostable packaging or products is an effective 

form of recycling. 

The Biodegradable Products Institute provides more information.” 

Further, the State of California has created two regulations that govern the use of the 

terms “biodegradable”, “degradable” and “compostable”. These are found in CA’s Public 

Resources Code Sections: 42359-42359.6 and 42355-42357 and clearly state that plastic 

products must meet ASTM Specifications. These regulations were put in place to help 

minimize the growing confusion in this area. 

For these reasons the BPI, recommends that the FTC strengthen its current definition for 

“compostable” to include the ASTM Specifications as follows: 

Compostable: It is deceptive to misrepresent, directly or by implication, that a 

product or package is compostable. A claim that a product or package is 

compostable should be substantiated by competent and reliable scientific 

evidence that all the materials in the product or package will break down into, or 

otherwise become part of, usable compost (e.g., soil-conditioning material, 

mulch) in a safe and timely manner in an appropriate composting program or 

facility, or in a home compost pile or device. Manufacturers must meet the 

requirements found in ASTM D6400 or ASTM D6868 to demonstrate 

compostability. Claims of compostability should be qualified to the extent 

necessary to avoid consumer deception. An unqualified claim may be deceptive 

if: (1) the package cannot be safely composted in a home compost pile or 

device; or (2) the claim misleads consumers about the environmental benefit 

provided when the product is disposed of in a landfill. A claim that a product is 

compostable in a municipal or institutional composting facility may need to be 

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qualified to the extent necessary to avoid deception about the limited availability 

of such composting facilities. 

Additionally, the BPI recommends that Example 2 under the definition in the Guides be 

modified as follows to recognize California’s labeling regulations. 

Example 2: 

A plastic lawn and leaf bag is labeled and sold in California as "Compostable in 

Municipal Yard Trimmings Composting Facilities.'' The bag does not meet ASTM 

D6400. The claim is deceptive as it does not meet the current regulations in the 

State where it is sold. 

 

Today, over 60% of the yard trimmings collected in the US are composted according the 

US EPA’s Municipal Solid Waste Characterization for 20053

. This is one of the highest 

diversion rates for any solid waste category. Further, according to BioCycle, there are 

over 3000 leaf and yard waste composting sites. So professionally managed composting 

facilities are well established in the US. 

However, the same EPA report states that food scraps recovery and diversion is 

approximately 2%. And while the number of food scrap organics diversion programs 

grows, the BPI believes that it is still necessary to urge consumers to check to see if 

programs exist in their neighborhoods. However, the BPI believes that a more positive 

qualification would also be appropriate. For example: 

“Check to determine if a professionally managed composting facility exists in 

your community.” 

This phrase will continue to alert consumers as to check to determine if appropriate 

programs are available. Also, by being shorter, it will be easier to use on packaging. 

Renewable Content” Comments: 

According the ACC survey, eight out of ten consumers thought that products made from 

natural materials are also ‘biodegradable’. Some manufacturers are capitalizing on this 

idea to convey inappropriate environmental benefits. For example, there is cutlery on 

the web that makes the following claims: 

“Xxx products are made with a GMO free bio based starch and 100% 

biodegradable. 

The BPI had this product analyzed in early 2007 using 2 outside labs. The tests showed 

that the product contained only 28% renewable content (based on ASTM D6866) and 

large amounts of polypropylene and polyethylene. Neither of these resins is 

biodegradable and there is no mention that the percentage of the product from 

renewable resources is less than 30%. 

 

3

 Source: http://www.epa.gov/epaoswer/non-hw/muncpl/pubs/msw06.pdf

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Additionally, work conducted on biobased cutlery and films for USDA's BloPreferred

Program showed that the content coming from renewable resources ranged as follows:

. 36% to 100% for cutlery4 &

. 2% to 96% for films5

The BPI believes that "renewable", "bJobased"or "natural" content claims are similar to

"recyded" content in the early 1990's. Direction should be provided by the FTC as to

how manufacturers should measure and communicate renewable content and their

environmental benefits.

With this in mind, the BPI recommends the following directions:

. All renewable content claims should be vertfled using ASTM 06866: "Standard

Test Methods for Determining the B/obased Content of Natural Range Materials

Using Radiocarbon and Isotope Ratio Mass Spectrometry Analysis'~ This test cost

effectively provides definItive quantification as to the percentage of the material

that derives from non-petroleum sources. Moreover, the BPI is aware of at least

3 laboratories that run this test today.

. Unqualified "renewable" or "natural content" claims should be limited to products

with greater than 95% non-petroleum resources.

. Products containing less than 95% renewable content should be required to clearly state that percentage. .

Respectively submitted!

5-c ~::

Steven A Mojo

BPI Executive Director

cc. BPI Board Members

Attachments

4 http://www.biopreferred.gov/fiJes/Item_Designi!ltion_Cutlery. pdt

5 http://www.biopreferred.gov/files/Biodegradable_Films.pdf

A

~

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BPI Biodegradable

promoting biodegradable products throughout the world

April 25, 2005

Ms. Janice Franlde

Federal Trade Commission

601 New Jersey Ave NW

Rm 2122

Washington D.C., 20001

Dear Janice:

It was good to speak with you again. As we discussed, I would like to bring to the FTC’s

attention that there are a growing number .of"biodegradable" claims, especially by

manufacturers of plastic bags for collecting pet waste. These manufacturer’s actions are

misleading, inappropriate (and in some cases knowingly illegal).

The BPI is designed to be a multi-stakeholder group, involving people and companies that

produce, use or recover biodegradable products. Our goal is to include organizations and

individuals ranging from resin suppliers and converters to industry suppliers to waste

haulers and composters as well as government officials, scientists and leading academics.

The organization has shown steady growth over the past few years. Current members

include leading biodegradable resin suppliers, such as BASF, NatureWorks LLC, DuPont,

Novamont and Procter & Gamble, converters and distributors, such as Heritage Bag,

Polargruppen A/S, Farnell Packaging, Georgia Pacific and Biota Spring Water, along with the

United States Composting Council, The Massach~Jsetts Department of Environmental

Protection, and R. Narayan, Chairman of ASTM D20.96-Subcommittee on Degradable

Plastics,

The issues that the BPI believes need to be addressed are

 ̄ Claiming to "biodegradable’; even when the bags (and pet waste) are customarily

landfilled.

[] Failure to support"biodegrades in landfill" claims with scientific data.

[] Knowingly breaking the laws in the State of California. ..

The 2 products that are emblematic of these offenses are "Oops I Pooped~’ and "Bags on

Board". These products are sold throughout the United States via large retailers, like

Petsmart and RE], as welt as smaller outlets.

The BPI supports the FTC’s Guides for the Use ofEnvironmental Marketing Claims, ~

Moreover, the BPI objects to the use of "biodegradable" without any qualifications as to

where this occurs; how long it takes and not having the data to support this claim.

FTC Prod 064468

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"An unqualified claim that aproduct orpackage is degradable, biodegradable or

photodegradable should be substantiated by competent and reliable scientific evidence

thatthe entire product orpackage will completely break down and return to nature, i.~,

decompose into elementsfound in nature within a reasonably shortperiod oftime after

customary disposal. ’" Section 206. 7 b ofthe FTC Guidesforthe Use ofEnvironmental

Marketing Claims.

Additionally, there are few, if any, benefits derived from putting "biodegradable" matedats

in a landfill, which are designed to be arid tombs according to RCRA. For this reason, the

BP] believes that a claim of"biodegrades in landfills" is an exaggeration of an environmental

benefit.

"Overstatement of environmental attribute: An environmental marketing claim should not

be presented in a manner that overstates the environmental attribute or benefit, expressly

or by implication. Marketers should avoid implications ofsignificant environmental

benefit~’ ifthe benefit is infact negligible." Section 206,6 e ofthe FTC Guidesforthe Use

 ̄ofEnvironmental Marketing Claims

In fact, in some countries, including Bdtain, Germany and Canada, regulations are being

enacted to keep biodegradable materials out of the landfill as a way of reducing methane

gas generation (a significant contributor gtobal warming).

The BPI believes that the claims made by "Oops I Pooped" are misleading (see attached

page from their website (Exhibit 1) because they are not supported by scientific data.

Further, biodegradation in landfills provides no meaningful environmental benefit and thus

this is an overstatement of an environmental benefit.

- "biodegradable waste bags for ..your dog"

- "will completely degrade in a landfill and leaves behind no harmful residue"

 ̄ Under benefits, "Steady degradation rate, typically 2 years."

= "1 to 5 years pending landfill conditions"

[] "Our bags will biodegrade in landfills in even/State but California"

When asked by the BPI, "Oops I Pooped" provided the attached data (Exhibit 2), which

discusses the test results of polyethylene resins with an additive produced by ECM. The

document was reviewed by Dr. Ramani Narayan a noted expert in the field of plastics and

biodegradation. Dr Narayan’s findings can be summarized as follows (see Exhibit 3 for

complete comments):

 ̄ Only 24% of the material was mineralized (or biodegraded). According to the

test results, seventy six percent of the material remains.

, The biodegradation process plateaued prior to the end of the test, indicating that

the process had stopped. (There is no indication that it will continue).

 ̄ These levels are comparable to those achieved by the first round of

"biodegradable plastics" 20 years ago, which generated the initial FTC lawsuits in

this area. ~

Clearly, there is no support for complete biodegradation in a landfill, even in 5 years, as

stated by the supplier and shown on a retailer website (See Exhibit 4). Also, attached is

a partial listing of retailers carrying this product, according to the manufacturer’s website

(Exhibit 5)

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Additionally, the last claim, "Our bag will biodegrade in landfills in every state except

California’; shows that the manufacturer knows that it is not complying with applicable

state laws. As background, the State of California regulations state that any claims of

"biodegradable, compostabte or degradable" by plastic films must comply with a current

ASTM Specification (Exhibit 6). California enacted this law in order to stop the

misleading claims made by plastic bag manufacturers, which were on the increase. The

California law does not create an exemption for products that a customarily landfitled.

Moreover, there are no AS"FM Specifications ~or landfill biodegradation.

In the case of "Bags On Board’; the BPI objects to their "100% Biodegradable Bags,

except as defined by California" claim for 3 reasons (Exhibits 7 & 8):

The attached independent analysts shows that the bags are essentially

polyethylene with no additives to promote degradation (Exhibit 9).

 ̄ Promoting biodegradation of a product that is landfilled is inappropriate and an

overstatement of an environmental benefit.

 ̄ The packaging clearly shows that the producer is not in compliance with the laws

of California.

The plastics industry is working hard to develop tests and criteria for determining

acceptable biodegradation performance in appropriate disposal routes. ASTM D6400 for

Compostable Plastics and ASTM D6868 for Compostabte Packaging are good examples.

Claims such as those used by "Oops I Pooped" and "Bags on Board" harm the credibility

of all manufacturers that seek to compty with the FTC Environmental Marketing Guides.

Nore importantly, their statements mislead consumers by claiming to have

environmental benefits when in fact they do not.

]anice, this note requests that the FTC order these 2 companies to cease their

misleading advertising. Further, the BPI hopes that FFC would recognize and support

California’s effort to use ASTM Specifications as the basis for making biodegradable,

compostable and degradable claims. Finally, the FTC should reiterate that claims of

biodegradability for products customarily disposed in landfills is an overstatement of

environmental benefit.

Sincerely,

Steven A. Mojo

BPI Executive Director

Attachments

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#i:

#2:

#3

#4 :

#5

#6

#7

#8

#9

List of Exhibits

Oops I Pooped claims from their website. You wil! find

"Will completely biodegrade in landfill and leave behind no harmful

residue"

 ̄ "Steady degradation rate typically 2 years"

 ̄ "1 to 5 years pending landfill conditions"

 ̄ "Our bags will biodegrade in landfills in even/State but California!"

Document supplied by Oops I Pooped, providing their substantiation

 ̄ "Ecological Assessment of ECM Plastic"

Analysis and comment of Exhibtt #2 by Dr. R. Narayan.

Samples from REI’s (retailer) website promoting biodegradation in

landfills

Partial list of retailers from Oops ][ Pooped website

Text of California Labeling Legislation

Sample of "Bags on Board" product purchased at retail, claiming 100%

Biodegradable Bags, except as defined in California"

Materials from retailer website, claiming "100% Biodegradable"

Analysis by Polimeri Europa, showing that the bags are polyethylene

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BPI Biodegradable 

Products isa) 

Institute 

March 30, 2010 

Mr. Michael Davis 

Federal Trade Commission 

CRC-240 

600 Pennsylvania Ave, NW 

Washington, D.C. 20580 

Dear Mike, 

Enclosed you will find 2 examples of the continuing stream of "biodegradable" 

products. What is interesting about these is that in both cases they use the same 

additive, EcoPure from BioTec (per the packages), and are making somewhat 

similar claims: 

1) Biodegradable Easter Grass (also labeled as Green) 

This product claims to meet ASTM D5511 (an anaerobic test). The back of 

the package states that this product will biodegrade in a landfill and 

achieves 3% biodegradation in 20 days, where ordinary Easter Grass does 

nothing. I don't know if they are saying that 3% is enough to warrant a 

"biodegradable" claim. Or if they believe that the process will continue 

until the product reaches close to 100°/0. In which case, they should have 

extended the testing period. 

2) Green Genius Biodegradable Bags 

According to the company's website (http://www.thegreengenius.com ) 

"Well, at least not for a thousand years or so. That's why we invented 

Green Genius bags. We figured the world was ready for a biodegradable 

plastic trash bag. They're just as strong as regular plastic bags, but unlike 

their more stubborn cousins, they meet ASTM D55111an industry 

standard for biodegradability." 

I would urge you to review the video on their site. This clearly gives the 

impression that the product will fully biodegrade in a landfill. 

Also, they provide consumers and customers with a letter from UL 

(attached). 

"Product is biodegradable in landfills where anaerobic digestion is 

occurring. Based on 36 day ASTM D5511 test results, it is 

estimated that the Green Genius trash bags will biodegrade within 

a one to ten year time frame, depending on the exact conditions 

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and operation of the landfill environment into which it is 

disposed." 

It is clear that UL nor the manufacturer have done the tests to 

demonstrate that the entire product will biodegrade as called for in the 

Environmental Marketing Guides. Further, based on the technology, it is 

reasonable to expect that the overall rate of biodegradation would be 

comparable to what was achieved in the Easter Grass example and well 

short of "complete". 

While I believe that each of the companies bears some responsibility in making 

these misleading claims, it is the additive supplier BioTec, who is the real culprit 

in this situation. You can see from the commonality in claims, that the link is the 

additive supplier, not necessarily the manufacturers of the products themselves. 

BioTec is a New Mexico based company with the following address: 

Bio-Tec Environmental, LLC 

7009 Prospect Ave NE #202 

Albuquerque, New Mexico 

87110 USA 

Website: http ://www. bio-tec. biz/aboutus. htm I 

Regards 

Steve Mojo 

BPI Executive Director 

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