PUBLIC DOCUMENT 

In the Matter of 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

Docket No. 9358 

ECM BioFilms, Inc., 

MAR 2 5 2014 

5C.ql1b SECffETARY 

a corporation, also d/b/a 

Enviroplastics International, PUBLIC VERSION REDACTED 

Respondent. 

RESPONDENT ECM BIOFILMS' MOTION TO COMPEL AND TO SANCTION 

COMPLAINT COUNSEL FOR VIOLATION OF DISCOVERY RULES . 

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

this Court to compel Complaint Counsel to engage in a diligent search and thereafter confirm to 

this Court on or before April I, 20 I 4 that it has in fact produced to ECM all documents 

responsive to ECM's document production requests. ECM also moves for sanctions in light of 

Complaint Counsel's admitted failure to perform a diligent search of its records responsive to 

ECM's document production requests, for Complaint Counsel's withholding of numerous 

responsive documents identified below, and for Complaint Counsel's false representation to this 

Court and cover-up regarding its receipt of the article entitled, "Biodegradation ofBioplastics 

and Natural Fibers During Composting, Anaerobic Digestion and in Soil." ("Article"). 

On December 3, 2013, Respondent served Complaint 

I 
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Counsel with its first set of document production requests. See Exh. RX-D. Requests numbered 

1, 3, and 9 therein would require production of the Article and the correspondence related to it. 

In Complaint Counsel's response thereto, none of those responsive documents was produced. 

On February 28, 2014, Respondent served Complaint Counsel with its second set of document 

production requests. See Exh. RX-E. Requests numbered 1, 3 and 21, and 23 therein would 

require production of the Article and the correspondence related to it. In Complaint Counsel's 

response thereto, none of those responsive documents was produced. The uncontroverted record 

confirms that 

Accordingly, beyond peradventure of doubt, Complaint Counsel withheld a large quantity 

ofresponsive documents. Indeed, on March 10,2014, in its Opposition, Complaint Counsel 

even falsely represented to this Court that it did not possess the Article in question until February 

14,2014, recanting in its Clarification ofMarch 13, 2014 only after receipt on February 28, 

2014, of a copy ofECM's subpoena duces tecum to Article author Michel. See J. Cohen Dec. ~6 

cf CC Clarification Regarding Resp. Sanctions Mot. at 1. That subpoena included requests 

which required production of the Michel/FTC correspondence, thus ensuring revelation ofthe 

documents FTC Counsel withheld. 

Given the large number of responsive documents withheld, the length ofthe withholding, 

and the cover-up attempted in Complaint Counsel's March 10, 2014 Opposition, severe sanctions 

are appropriate. Respondent hereby requests that, at a minimum, this Court: 

2 

, .. 
PUBLIC DOCUMENT 

1) Censure Complaint Counsel, and refer this matter for further investigation by 

Scott Wilson, FTC Inspector General, and Wallace E. Shipp, Jr., D.C. Bar 

Counsel, Board ofProfessional Responsibility; 

2) Compel Complaint Counsel to perform a diligent search of all· FTC files and 

produce all documents responsive to ECM' s document production requests on 

or before April 1, 2014 and certify to this Court that complete production has 

been achieved as ofthat date; 

3) Exclude the Article from evidence and preclude Complaint Counsel from 

relying on the Article and any reference to Michel in the hearing; 

4) Summarily deny Complaint Counsel's pending motion for certification and to 

extend discovery and hearing dates; 

5) Extend ECM's fact discovery deadline for at least 30 days for the limited 

purpose of allowing ECM the opportunity to conduct additional discovery from 

Michel, OSU, and others involved in the Article, including, but not limited to 

FTC personnel and Complaint Counsel. 

DATED: March 19, 2014 

3 

Respectfully submitted, 

J than W. Emord Ge ord@emord.com) 

EMORD & ASSOCIATES, P .C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC VERSION REDACTED 

RESPONDENT'S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL AND 

TO SANCTION COMPLAINT COUNSEL FOR VIOLATION OF DISCOVERY RULES 

Pursuant to Rules 3.31 and 3.38, ECM BioFilms, Inc. (ECM), hereby moves the Court to: 

(1) censure Complaint Counsel for wrongful withholding of documents responsive to 

Respondent's discovery requests and refer this matter for further investigation by Scott Wilson, 

FTC Inspector General, and Wallace E. Shipp, Jr., D.C. Bar Counsel, Board ofProfessional 

Responsibility; (2) compel Complaint Counsel to perform a diligent search of all FTC files and 

produce all documents responsive to ECM' s document production requests on or before April 1, 

2014, and certify to this Court that complete production has been achieved as of that date; (3) 

exclude the article entitled "Biodegradation ofBioplastics and Natural Fibers During 

Com posting, Anaerobic Digestion and in Soil" (Article) from evidence and preclude Complaint 

Counsel from relying on the Article and any reference to Michel in the hearing; ( 4) summarily 

deny Complaint Counsel's pending motion for certification and to extend discovery and hearing 

dates; (5) extend ECM's fact discovery deadline for at least 30 days for the limited purpose of 

allowing ECM the opportunity to conduct additional discovery from Dr. Michel, OSU, and 

1 
PUBLIC DOCUMENT 

others involved in the Article, including, but not limited to FTC personnel and Complaint 

Counsel. 

By Complaint Counsel's own admission, FTC attorneys investigating ECM had 

possession ofthe Article since February 2013, fully 10 months before ECM's first document 

production request and 1 year before ECM's second request. Complaint Counsel intentionally 

withheld the responsive document until February 19, 2014 on the second day ofthe deposition of 

ECM President Robert Sinclair and continued to use the document, despite objection, in the 

deposition ofDr. Timothy Barber. 

BACKGROUND 

The withheld Article (first supplied to ECM on February 19,2014 in the deposition of 

Robert Sinclair) and 25 emails with Michel and attachments thereto (first supplied to ECM on 

March 18, 2014) were responsive to multiple ECM document requests, including Requests 

numbered 1, 3, and 9 in ECM' s first set of requests and Requests numbered 1, 3 and 21, and 23 

in ECM's second set of requests. 

On February 28, 2014, Complaint Counsel opposed Respondent's Motion for Sanctions 

for Complaint Counsel's misconduct in the deposition of Robert Sinclair, declaring under oath 

that: 

• "Complaint Counsel received the Ohio State Study (unsolicited) well after business hours 

on Friday, February 14,2014, at approximately 8:00PM ... " See J. Cohen Dec. ~6 

(March 10, 2014) 

• "Complaint Counsel has not communicated in any way with Frederick Michel, Eddie 

Gomez, OARDC, or anyone at Ohio State." Id at ~7. 

2 

---.,...,--------------,-.~-----------~---·---------·· 
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But on February 28, 2014, Complaint Counsel received from ECM a copy ofECM's 

subpoena duces tecum to the author of the Article. See Exh. RX-F-1 (Copy ofMichel 

Subpoena); Exh. RX-F-2 (Email to Complaint Counsel). In that subpoena, ECM demanded 

production of all correspondence between Michel and the FTC. It was then necessarily apparent 

to Complaint Counsel that ECM would likely obtain documents that had theretofore not been 

produced. 

On March 13, 2014, Complaint Counsel filed a "Clarification" regarding ECM's pending 

Sanctions Motion. Complaint Counsel therein admitted to the withholding: 

• FTC Complaint Counsel had directly communicated with Frederick Michel. See CC 

~ 

Clarification Regarding Resp. Sanctions Mot. at 1 (March 13, 2014) 

• FTC Complaint Counsel employed Mr. Michel as a consulting expert in other 

investigations concerning biodegradable claims. !d. 

• One of FTC Complaint Counsel investigated ECM during the agency's pre-Complaint 

investigation. 

• As ofNovember 16, 2012, FTC attorneys received a draft copy of the Article before it 

was published. !d. 

• Complaint Counsel was only now "reviewing [their] prior discovery responses 

expeditiously to ascertain whether Complaint Counsel should amend or supplement 

them." !d. at 2. 

See also Exh. RX-L (CC Supp. Initial Disclosures). 

Not until March 18, 2014, only after ECM had informed Complaint Counsel in a meet 

and confer of March 17, 2014 of ECM' s intention to file the instant motion, did Complaint 

Counsel provide ECM a "Supplemental Disclosure." See CC Supp. Initial Disclosures (March 

3 
18, 2014 ). The disclosure revealed that 

PUBLIC DOCUMENT 

see Exh. RX-C-1, that. 

see Exh. RX-G 

and that Complaint Counsel withheld from ECM the Article, 

since December 3, 2013 despite 

ECM document requests calling for those documents to be produced. See Exh. RX-D; Exh. RXE. 

The prejudice to Respondent is substantial: Respondent has been denied access to this 

information which shows agency collusion, expert bias, and non-disclosure of financial sources 

competitive to ECM through almost the entirety of the fact discovery phase, thereby 

handicapping ECM in its ability to marshal full evidence of collusion, bias, and conflict of 

interest. Further ECM discovery is therefore warranted to undue the harm caused by Complaint 

Counsel's wrongful withholding. 

ARGUMENT 

Complaint Counsel must abide by the same discovery standards that govern ECM. See 

generally FTC Rule 3.31 (16 C.F.R. § 3.3 1); see also Republic of China v. Nat'/ Union Fire Ins. 

Co. of Pittsburgh, Pa., 142 F. Supp. 551,556 (D. Md. 1956). Complaint Counsel's wrongful 

withholding, related false representations to the Court, and cover-up are sanctionable. See Rule 

3.38(b) (16 C.F.R. 3.38(b)). Sanctions for the discovery violations present here are warranted. 

See In the Matter of Basic Research, et. al., 9318,2005 WL 3524918 at2-3 (F.T.C. Nov. 22, 

2005). 

A penalty must be exacted that will deter the misconduct by Complaint Counsel in the 

future. See Bonds v. D.C., 93 F.3d 801, 808 (D.C. Cir. 1996). 

4 
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A. The FTC Failed to Diligently Search For Responsive Documents In Violation of Its 

Obligations Under Rules 3.31 and 3.37 

Complaint Counsel altogether failed to honor key discovery obligations. Complaint 

Counsel declared under oath that its responses to Respondent's discovery requests were 

complete. See Exh. RX-H. They were not. Complaint Counsel confirmed production of all 

responsive documents. See Exh. RX-H. That was false. Complaint Counsel were obligated to 

engage in a comprehensive search for, and to produce all, documents responsive to ECM' s 

discovery requests. See Rule 3.31 ( c )(2). They did not. There is no indication that Complaint 

Counsel employed, "at a minimum, a reasonable procedure to distribute discovery requests to all 

employees and agents of [Complaint Counsel and the FTC] potentially possessing responsive 

information, and to account for the collection and subsequent production of the information to 

[ECM}." Nat'/ Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987). 

Complaint Counsel "are custodians of the case files and records, which include all materials 

obtained during investigation and litigation, and are thus responsible for their safekeeping and 

proper disposition." 1 Federal Trade Commission Operating Manual, Chapter 10, Sec.13.6.4.3. 

Complaint Counsel's failure to perform even a reasonable inquiry of its own records 

compounds the flagrant, strategic misconduct at Sinclair's deposition. Despite admitting 

withholding, Complaint Counsel have provided no assurance that they will search for and 

produce all responsive documents. See CC Clarification Regarding Resp. Sanctions at 2. 

1 Also available at http://www.ftc.gov/sites/default/files/attachments/ftc-administrativestaff-manuals/ch1 Oadministrativelitigation.pdf (last visited March 18, 20 14). 

5 

---~------------~----___,......---~--------------------~---------------------- ~~--,-----------~---
PUBLIC DOCUMENT 

B. There Is No Justification for Complaint Counsel's Failure to Search for, and 

"Timely" Disclose, Responsive Documents 

In its "Clarification," Complaint Counsel offers no sound justification for its withholding 

of materials responsive to Respondent's discovery requests. 

In Complaint Counsel's first iteration of the facts, in a sworn affidavit appended to its 

Opposition, Complaint Counsel somehow failed to find what they gratuitously (and erroneously) 

touted as an article "devastating" to ECM's case until Friday February 14, 2014 (despite the fact 

that the Article had been in Complaint Counsel's possession See J. 

Cohen Dec. ~7 (March 10, 201 4). Without 

6 

····· -- ·-- -- --
PUBLIC DOCUMENT 

See Exh.'s RX-1-2; RX-J; RX-G. 

C. Complaint Counsel's Misconduct Bas Severely Prejudiced ECM in the Preparation 

of its Defense 

The ALJ may consider prejudice to a party's ability to prepare its case when determining 

appropriate sanctions. Batson v. Neal Spelce Associates, Inc., 7 65 F .2d 511, 514 (5th Cir. 1985). 

Complaint Counsel's failure to search comprehensively for and timely produce 

discovery; its wrongful withholding; and its cover-up of responsive documents has indeed 

prejudiced Respondent, preventing it from having sufficient opportunity and time to adduce 

before the close of fact discovery all facts related to the bias, misconduct, and conflict of 

interests present, which impugn the integrity of Complaint Counsel's case and help explain why 

Complaint Counsel takes various positions in this litigation. See In reAgent Orange Prod. Liab. 

Litig. , 517 F.3d 76, 103 (2d Cir. 2008); see Richardson v. City of Spokane, Wa., 12-CV-0577-

TOR, 2013 WL 6795902 (ED. Wash. Dec. 23, 2013) ("[Defendant's] inability to get 

information from Plaintiff almost certainly hinders their ability to develop a defense") (Order re: 

Defendant's Motion to Dismiss, Etc.). Every opportunity to evaluate science upon which 

Complaint Counsel depends to determine its validity is an essential aspect of Respondent's case 

in these proceedings. See Hickman v. Taylor, 329 U.S. 495, 507 (1947) (noting that, "Mutual 

knowledge of all the relevant facts gathered by both parties is essential to proper litigation"). 

Further, Complaint Counsel's multiple violations, which by themselves demonstrate 

willfulness, compound the prejudice against Respondent and call for a limited change in 

7 
PUBLIC DOCUMENT 

procedural deadlines to secure equanimity in discovery and a meaningful rebuke. See Arias v. 

DyncorpAerospace Operations, LLC, 677 F. Supp. 2d 330,332 (D.D.C. 2010). 

D. Relief 

The ALJ has broad discretionary power to impose sanctions. See 16 C.F.R. § 3.38(b). 

Rule 3.38(b)(4); Fed. R. Civ. P. 37(c)(l) ("If a party fails to provide information ... the party is 

not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, 

unless the failure was substantially justified or is harmless"). 

First, Complaint Counsel's wrongful withholding of documents responsive to ECM 

document production requests, false representations concerning the receipt of the Michel article 

to this Court, and (following receipt of proof that by subpoena ECM would obtain the previously 

secreted documents) admission in its Clarification of its withholding, all justify severe sanctions 

against Complaint Counsel. 

Second, because of the large number of responsive documents withheld and the related 

misconduct mentioned above, Complaint Counsel should be ordered to perform a diligent search 

to uncover all documents responsive to ECM' s document production requests and produce them 

to ECM with a certification to this Court from Complaint Counsel that the search has been 

performed and that, indeed, all responsive documents have been supplied, that to occur by April 

1 or such other date certain as established by the Court. 

Third, Respondent requests exclusion from evidence of the Article and that no witness be 

allowed to use or rely on it in any manner or to make reference to Michel at hearing. Complaint 

Counsel's repeated violations concerning the Article must be viewed in tandem when 

considering appropriate sanctions. Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 

8 
PUBLIC DOCUMENT 

2006). Respondent's requested relief is, at a minimum, directly proportional to the FTC's 

egregious violations. See Moore v. City of Chicago, 02 C 5130, 2006 WL 1710234 (N.D. Ill. 

June 14, 2006. Had the Article, the Michel correspondence with FTC, and the attachments 

thereto, along with evidence of FTC payment to Michel for his service as an undisclosed 

consultant, been available to ECM within 60 days of the delivery of the first document request to 

Complaint Counsel (i.e., on or about February 3, 2014), ECM would have (in advance of 

depositions ofECM, ECM personnel, and Dr. Barber) reviewed the Article and evidence 

extensively with its experts, would have subpoenaed all underlying data and evidence concerning 

the Article, would have deposed Michel and all others involved in the publication and use of the 

Article before the aforementioned depositions, and ECM would not have been prejudiced by 

what became Complaint Counsel's ambush use of the Article in the deposition ofECM principal 

Sinclair. ECM was denied the opportunity for this discovery before key discovery events and the 

February 28, 2014 cut off. 

Fourth, ECM requests that the pending motion to certify and request for extension of the 

discovery and hearing deadlines be summarily denied in light of Complaint Counsel's 

misconduct. See Rule 3.38(b). 

Fifth, ECM requests a limited 30 day extension of the discovery deadline to enable it to 

explore in full the bias and conflicts infecting Michel and related to the Michel/FTC relationship. 

The Court may authorize "for good cause" additional discovery of materials in the possession 

and control of the FTC. See Rule 3.3l(c)(2). Respondent requests the opportunity to depose 

Complaint Counsel who worked with Michel and who performed document searches within the 

agency to discover all relevant information about the Article, Michel, bias and conflicts, and the 

sufficiency of Complaint Counsel's document search. 

9 
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CONCLUSION 

For the foregoing reasons, Respondent respectfully requests that this Court impose the 

above requested Order to Compel and for Sanctions. 

Respectfully submitted, 

J than W. Emord (je ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED this 19th day ofMarch 2014. 

10 
PUBLIC DOCUMENT 

STATEMENT CONCERNING MEET AND CONFER 

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

March 17, 2014, at approximately 1:00 PM EST, Respondent's counsel, Peter Arhangelsky and 

Lou Caputo, conferred by conference call with Complaint Counsel, Katherine Johnson, Elisa 

Jillson, and 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, 

J than W. Emord (je ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent's Counsel hereby states that the content ofthe foregoing 

motion and certain exhibits contain information properly designated by third party witnesses as 

"confidential" under the standing Protective Order in this case. Accordingly, ECM will submit a 

public version with the exhibit content redacted. 

11 

Respectfully submitted, 

J than W. Emord (je ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

[PROPOSED) ORDER GRANTING RESPONDENT ECM BIOFILMS, INC.'S MOTION 

TO COMPEL AND FOR SANCTIONS 

This matter having come before the Administrative Law Judge on March 20, 2014, upon 

a Motion for Sanctions ("Motion") filed by Respondent ECM BioFilms, Inc. ("ECM") pursuant 

to Commission Rule 3.31 and 3.38, for an Order to compel and to sanction 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 and that 

Complaint Counsel is censured for their misconduct arising from this matter; ORDERED that 

such misconduct will be referred to Bar Counsel at the Washington, D.C. Board of Professional 

Responsibility for further investigation; ORDERED that Complaint Counsel shall perform a 

diligent search of all FTC files and produce all documents responsive to Respondent's discovery 

requests and that Complaint Counsel shall certify to this Court, on or before April 1, 2014, that 

such search has been completed and responsive documents produced; ORDERED that 

Complaint Counsel shall be precluded from introducing into evidence or otherwise relying on, in 

support of any claim or defense, the article identified in Exhibit RX-B of Respondent's Motion, 

entitled: Eddie F. Gomez and Frederick C. Michel Jr., "Biodegradability of conventional and 

12 
PUBLIC DOCUMENT 

bio-based plastics and natural fiber composites during composting, anaerobic digestion and longterm soil incubation" Polymer Degradation and Stability 98 (2013) 2583-2591; DENYING 

Complaint Counsel's pending motion for certification and to extend discovery and hearing dates; 

ORDERED that Respondent ECM BioFilm's shall have an extended period of Fact discovery of 

up to 30 days to conclude discovery concerning the aforementioned Exhibit RX-B; and 

ORDERED that ECM shall have 30 days from the date of this Order to perform discovery 

related to Michel and also to FTC interaction with him. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: 

13 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on March 20, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

One hardcopy original and one courtesy copy to the Office of the Secretary through UPS 

Overnight mail: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Jonathan Cohen Qcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

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

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

Respectfully submitted, 

J than W. Emord Qe ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

14 
DATED: March 20,2014 

15 

PUBLIC DOCUMENT 

·Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
RESPONDENT 

EXHIBIT 

RX-A 

CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-A 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
REDACTED 
REDACTED 
REDACTED 

--------~---·-------- -----------~------------------·---------~-----·---------------------- . - ···-------------·-------·-~-
REDACTED 
REDACTED 

----------- -- -- -
REDACTED 
RESPONDENT 

EXHIBIT 

RX-B 

Resp. Mot to Compel and for Sanctions 

Exh. RX-B 
Po ym~o· Dcgr.odation and Smbility 98 (20!3) 2583- 2591 

Contents lists available at ScienceOirect 

Polymer Degradation and Stability 

ELSEVIER journal homepage: www.elsevie r.com/locate/polydegstab 

~~ -.· - -... --

. ; Polyn\er Degradation and 

Stability 

·~· 

Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and 

long-term soil incubation 

(I) CrossMa.rk 

Eddie F. Gomez, Frederick C. Michel Jr. • 

Department of Food. Agriculrural and Biological Engineering. The Ohio State University. OARDC: 1680 Madison Avenue. Wooster. OH 44691. USA 

ARTICLE INFO 

Artide history: 

Received 21 August 2013 

Accepced 21 September 2013 

Available online 1 October 2013 

Keywords: 

Biodegradable plastics 

Anaerobic digestion 

Compos ring 

Soil 

Biodegradation 

Bioplastics 

1. Introduction 

ABSTRAC T 

Plastics are a major constituent of municipal solid waste that pose a growing disposal and environmental 

pollution problem due to their recalcitrant nature. To reduce their environmental impacts and allow 

them to be transformed during organic waste recyding processes. various materials have recently been 

introduced to improve the biodegradability of plastics. These include conventional plastics amended 

with additives that are meant to enhance their biodegradability, bio-based plastics and natural fiber 

composites. In this study, the rate and extent of mineralization of a wide range of commercially available 

plastic alternative materials were determined during composting. anaerobic digestion and soil incubation. The biodegradability was assessed by measuring the amount of carbon mineralized from these 

materials during incubation under conditions that simulate these three environments and by examination of the materials by scanning electron. micrography (SEM}. The results showed that during a 660 

day soil incubation, substantial mineralization was observed for polyhydroxyalkanoate plastics, starchbased plastics and for materials made from compost. However, only a polyhydroxyalkanoate-based 

plastic biodegraded at a rate similar to the positive control (cellulose). No significant degradation was 

observed for polyethylene or polypropylene plastics or the same plastics amended with commercial 

additives meant to confer biodegradability. During anaerobic digestion for 50 days, 20-25% of the biobased materials but less than 2% of the additive containing plastics· were converted to biogas 

(CH4 + C02). After 115 days of composting, 0.6% of an additive amended polypropylene, 50% of a plastarch material and 12% of a soy wax permeated paper pulp was converted to carbon dioxide. SEM 

analysis showed substantial disintegration of polyhydroxyalkanoate-based plastic, some surface changes 

for other bio-based plastics and coconut coir materials but no evidence of degradation of polypropylene 

or polypropylene containing additives. Although certain bio-based plastics and natural fibers biodegraded to an appreciable extent in the three environments. only a polyhydroxyalkanoate-based resin 

biodegraded to significant extents during the time scale of com posting and anaerobic digestion processes 

used for solid waste management. 

~ 2013 Elsevier Ltd. All rights reserved. 

a re moving toward more sustainable waste management practices 

such as recycling. composting and anaerobic digestion. 

Plastics are synthetic and semi-synthetic polymeric compounds, 

derived primarily from fossil carbon sources such as crude oil and 

natural gas. Their mechanical properties and characteristics such as 

low-cost, durability and processability, have led to their widespread 

use for diverse applications. However most commonly used plastics 

are very resistant to biological degradation [ 1). This has led to major 

challenges for waste management operations especially those that 

It is estimated that of the 31 miUion tons of plastic waste 

generated annually in the U.S. only 8% is recycled [2). Therefore, a 

large percentage of p lastic waste is currently Iandfilled, or released 

into the environment. Throughout the world, roadsides, parks. 

beaches, oceans and natural areas are inundated with plastic debris 

pollution [3 ). Waste management systems are also affected by high 

volumes of plastics that are often commingled wit h organic wastes 

(food scraps, wet paper, yard trimmings, soil and liquids). making it 

difficult and impractical to recycle both organic fractions and/or the 

plastics mixed with t hem without expensive cleaning, separation 

and sanitizing p rocedures [4]. 

• Corresponding author. Tel.: + 1 330 263 3859: fax: +I 330 263 3670. 

E-mail address: michcl.36\i>1o>·u.cdu (F.C. Michel~ 

0141-3910/S - see front matter e 2013 Elsevier Ud All rights reserved. 

hrtp:f/dx.doi.orgfi 0.'10'16Jj.potymdegradsr.l b.20"13.09.018 

Resp. Mot to Compe l and for Sanctions 

Exh. RX-B 

------- ---··------------- - -
2584 E.F. Gomez, F.C. Michel Jr./ Polymer Degradation and Stability 98 (2013) 2583-2591 

The fact that plastics are made from non renewable resources 

and their persistence in the environment and during organic 

recycling has resulted in global concern and intensive efforts to 

develop plastic materials that not only have acceptable prices and 

similar performance to conventional plastics, but also are made 

from renewable feedstocks and/or undergo biodegradation in a 

reasonable amount of time without leaving toxic residues [ 5]. 

Although biodegradable bio-based plastics are meant to 

improve the sustainable use of resources, a complete life-cycle 

analysis including disposal must be conducted [6] to insure that 

the solution is not worse than the problem. Many factors impact the 

life-cycle carbon balance of plastics including the source of the 

feedstock used to make them, whether the material is recycled and 

the extent and type of biodegradation during disposal. For example, 

most plastics are derived largely from fossil sources such as natural 

gas or crude oil [7]. However the monomers used to make them can 

also be made from renewable resources. In Brazil, ethylene, the 

building block of one of the most widely used plastics, polyethylene 

[8] is made from ethanol derived from sugar cane. Although made 

from a biomass feedstock, this type of polyethylene is still essentially not biodegradable. On the other hand, petroleum can also be 

used to make plastics that are biodegradable. The lactic acid used to 

make polylactic acid (PIA) can be produced both by fermentation 

and synthetically from petroleum [9], and either type is biodegradable. On this basis, plastics can be classified into four types 

with respect to whether they are biodegradable and the source of 

the feedstock used to make them. These four types are conventional 

plastic, bio-based plastic, biodegradable plastic and biodegradable 

bio-based plastic (Table 1 ). Understanding the environmental 

benefits of these four classes of materials (Table 1) and the impact 

of their use on GHG emissions can be confusing and is not always 

straightforward. 

Plastics made from petroleum, such as polyethylene, have a 

well-defined life cycle. When landfilled, the carbon in the plastic 

will be sequestered and not contribute to global warming. Recycled 

polyethylene may contribute even less fossil C02 to the environment if less energy is used to recycle it than is used to make it in the 

first place. In these cases, conventional plastics may have less 

impact on GHG emissions that those designed to biodegrade. 

For reasons presented above, efforts have been made to develop· 

durable plastics made from renewable biomass feedstocks [5]. 

These are called "bio-based plastics". On balance this type of plastic 

offers a great potential to reduce greenhouse gases in the atmosphere by sequestering carbon. This is because atmospheric C02 is 

fixed into the carbohydrates used as their feedstock. If the plastic is 

eventually landfilled, this carbon will become locked for millennia 

within the landfill and on balance reduce atmospheric C02• However these plastics also pose pollution problems [ 10]. 

Biodegradable bio-based plastics, are also made from biomass 

but are designed to be compostable and/or biodegradable. These 

types include PLA and polyhydroxyalkanoates-based resins (PHA) 

Table 1 

Classes of plastics. 

Class Source Biodegradable Example Reference 

Petroleum/natural No 

gas 

II Petroleum/natural Yes 

gas 

Ill Biomass (Corn, sugar No 

cane, etc) 

IV Biomass (Corn. sugar Yes 

cane, etc) 

• Polylactic acid. 

b Polyhydroxyalkanoates-based resin. 

Polyethylene, [7] 

polypropylene. 

PLA" from petroleum. [ 9] 

Polyethylene derived IS] 

from corn ethanol. 

PHA", PIA rlerived [141 

from starch. 

made from corn. This class of polymer is carbon neutral from the 

standpoint of the carbon in the plastic, but a substantial amount of 

fossil energy is used to produce the plastic and the biomass 

feedstocks. 

The class with perhaps the greatest potential to contribute to 

greenhouse gas emissions is biodegradable plastics made from 

petroleum. This is because not only is fossil energy used to produce 

them in the first place, but fossil carbon is released when the material ultimately biodegrades. If this biodegradation occurs in a 

landfill, then it usually will generate methane (CH4), which is a 

greenhouse gas with 21 times the warming potential of COz. Most 

landfills do a poor job of capturing this gas, even those with 

methane recovery systems [ 11]. So landfilled biodegradable plastics, eventually contribute both methane and carbon dioxide to the 

atmosphere when they degrade. 

Some novel polymers combine both biomass and fossil derived 

resins to decrease production prices, increase the bio-based content 

and improve material performance [ 5] (e.g. a plastarch containing a 

blend of a starch-based polymer and conventional plastics such as 

polypropylene). The biogenic renewable carbon contained in these 

and other biomaterials can be determined from the radioactive C14 

signature of the product [ 12 ]. Yet these hybrid materials likely are 

neither recyclable nor completely biodegradable and therefore are 

likely worse than conventional plastics from a GHG emissions 

perspective. 

Composting plays an important and growing role in sustainable 

organic waste management and recycling. However, plastics are 

one of the main contaminants in composts. Biodegradable plastics 

are meant to address this problem. Composting of these materials 

also reduces their environmental impact in that they will largely be 

converted to C02 and not to CH4 as they would be in a landfill. Since 

this COz was originally fixed from the atmosphere into renewable 

biomass, on balance it will not increase atmospheric COz. 

Biodegradation is the mineralization of materials as a result of 

the action of naturally-occurring microorganisms such as bacteria 

and fungi [ 13]. The biodegradation of plastics is limited by their 

molecular weight, chemical structure [ 14], water solubility and the 

fact that most plastics are xenobiotic. That is, they were not present 

in the environment until very recently so that the evolution of 

metabolic pathways necessary for their biodegradation, a process 

that takes millions of years, has yet to occur. 

In contrast, the biodegradation of natural polymers, such as 

starch or cellulose by microorganisms occurs relatively rapidly. It 

begins with the excretion of extracellular enzymes that depolymerize these materials. Once the polymer is reduced to a size that is 

water soluble and able to be transported through the cell wall, 

microbial metabolic pathways can then mineralize it [15]. Even 

though microorganisms drive the biodegradation process. other 

non-biotic chemical processes such as photo-oxidation and 

chemical degradation may also take place before or in parallel. 

Biodegradable materials are used in diverse applications. Many 

different biodegradable plastics are used for food packaging and for 

waste containment. They have also been developed for medical 

applications, including medical devices and for drug delivery [ 16]. 

Biodegradable plastics are used widely in agriculture, as mulching 

films and low tunnels [ 17, I 8] as well as guide strings and plant 

nursery containers [19]. The physical properties and performance 

of biodegradable plastics made from PLA and natural fibers were 

found to be similar to conventional plastics for greenhouse crop 

production [20]. In addition, biodegradable potting containers have 

gained a high degree of acceptance among consumers [21]. 

Recently, various materials have begun to be marketed that 

claim to be biodegradable or compostable. Terms such as 

"degradable", "oxo-biodegradable", "biological", "compostable" 

and "green" are often used to describe and promote different 

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E.F. Gomez, F. C. Michel ]r. I Polymer Degradation and Stability 98 (2013) 2583-2591 2585 

plastics. These materials include conventional plastics amended 

with additives meant to enhance biodegradability as well as biobased plastics and natural fiber composites. There has been little 

research on the extent to which these materials truly degrade and/ 

or biodegrade over the time scale of waste management processes 

such as composting and anaerobic digestion (AD) or in natural 

settings [22]. 

The objective of this study was to compare the relative biodegradability of a range of novel plastics and natural fiber composites 

during composting, AD and in soil conditions. The hypothesis was 

that materials that are referred to as biodegradable, compostable 

(or similar terms), and plastics containing additives designed to 

enhance biodegradability, mineralize during the time scale of waste 

treatment processes and in reasonable amounts of time in the 

environment and at rates comparable to natural materials known 

to be biodegradable and or compostable (e.g. cellulose paper). 

2. Materials and methods 

Standardized laboratory-scale experiments were conducted to 

study the biodegradability of various materials during soil incubation, composting and AD conditions [23-25]. The extent of 

biodegradation was calculated by measuring the average carbon 

(C02 and or CH4 )' mineralized from each treatment minus the 

average carbon evolved from blanks, and dividing this by the total 

amount of sample carbon added to each treatment. Reactors containing only the inoculum (AD), soil (soil tests) or compost 

(compost tests) were used as blanks. 

2.1. Materials 

Materials tested included plastics designed to be biodegradable, 

conventional plastics amended with additives that are meant to 

enhance biodegradability, bio-based plastics and natural fiber 

composites (Tables 2 and 3). The positive and negative controls 

used for all experiments were cellulose paper (Fisher Scientific, PA, 

U.S.) and 100% conventional polypropylene (PP), respectively. Materials were tested both after grinding (a preliminary soil experiment only) and as 1 x 1 em squares (thicknesses shown in Table 3). 

22. Biodegradation in soil incubation 

The extent of long-term biodegradation of polymeric materials 

in contact with soil was determined based on ASTM D5988-03 [24]. 

These included PP + 2% additive, polystyrene (PS) + 2% additive, 

Table 2 

polyethylene terephthalate (PETE) + 1% additive, plastarch, a copolyester + com-based plastic, a wheat starch-derived plastic and 

PHA (Tables 2 and 3). Six natural fiber composite materials were 

also tested: paper pulp, paper pulp+ asphalt, coconut coir, rice hull, 

composted cow manure and peat fiber. All samples were incubated 

in triplicate for a period of 660 days. 

The soil media used for the experiments was a mixture of 43% 

certified organic top soil, 43% no-till farm soil collected at coordinates: 40.778633, -81.930873 and 14% sand. Soil was sieved to 

less than 2 mm particle size and large plant materials, stones, and 

other inert materials were removed. The chemical properties of the 

soil mixture are shown in Table 4. The soil media was amended 

with ammonium phosphate (Fisher Scientific, PA, U.S.) to maintain 

a C:N ratio of 20:1 based on the carbon content of the test 

specimen. 

The soil mixture (300 g dry) was placed in the bottom of a 2-L 

(working volume) wide mouth jar (Ball® Corporation, item # 

383178). Distilled water was added to bring the moisture content of 

the mixture to 60% of the moisture holding capacity. The test 

specimens (1 g of sample carbon) were then mixed thoroughly into 

the soil. A solution containing 20 ml of potassium hydroxide (KOH) 

0.5 N (Fisher Scientific, PA, U.S.) was placed in a cup suspended 

from the lid of each vessel to trap evolved C02. All vessels were 

sealed and incubated at room temperature (20 ± 2 °C). 

Carbon dioxide produced in each vessel reacted with the KOH in 

the cup to form potassium bicarbonate. The amount of C02 produced was determined by titrating the KOH solution with 0.25 N 

hydrochloric acid (Fisher Scientific, PA, U.S.) to a phenolphthalein 

end-point. The experiment was designed so that the headspace 

volume was sufficient to prevent the oxygen concentration in the 

vessel from falling below 18%. The KOH traps were removed and 

titrated at time intervals that assured that their absorption capacity 

was not exceeded. The KOH traps were refilled at a rate dependent 

on the rate of C02 generation in each flask. At the time of removal of 

the traps, the vessel was flushed and allowed to sit open to allow 

fresh air to fill the headspace. In addition, distilled water was added 

to the soil to the original weight to maintain adequate moisture. 

The effect of particle size on biodegradation rate was determined by comparing the biodegradability of 1 em squares to 

ground samples. Samples were ground in liquid nitrogen using a 

IKA® A11 basic Analytical mill (IKA® Works Inc., NC, U.S.) for 10 s. 

Test specimens included PP + 2% additive, co-polyester + cornbased plastic, wheat starch-derived plastic, paper pulp, paper 

pulp+ asphalt, coconut coir and rice hull (Tables 2 and 3). Samples 

were incubated in triplicate for 660 days. 

Material information for commercially available bio-based plastics, plastics amended with additives and natural fiber composites. 

Material 

PP + 2% additive 

PS + 2% additive 

PETE+ 1% additive 

Plastarch 

Co-polyester + corn-based plastic 

Wheat starch-derived plastic 

PHA 

Paper pulp + soy wax 

Paper pulp 

Paper pulp + asphalt 

Coconut coir 

Rice hull 

Composted cow manure 

Peat fiber 

Material description 

Blend of polypropylene (PP) with 2% ECM MasterBatch PelletsTM additive (ECM BioFilms Inc., OH. U.S.) 

Blend of polystyrene (PS) with 2% ECM MasterBatch PelletsThl additive (ECM BioFilms Inc .• OH, U.S.) 

Blend of polyethylene terephthalate (PETE) with 1% EcoPure® additive (Bio-Tec Environmental LLC, NM, U.S.). 

A blend of polypropylene with corn starch. 

Blend of an aliphatic aromatic co-polyester with a corn starch-derived polymer (EcobrasThl, BASF). 

Made from a wheat starch-derived resin (OP-47 Bio®, Summit Plastic Company, OH, U.S.). 

Made from polyhydroxyalkanoates-based resin (Metabolix. MA, U.S.). 

Paper pulp pot permeated with soy wax. 

Recycled (74% minimum) paper pulp. 

Blend of recycled (74% minimum) paper pulp+ asphalt. 

Made from coconut husk. 

Made from rice hull. 

Made from composted cow manure. 

Made from Canadian sphagnum peat moss + wood pulp. 

' 1 = injection molding; 2 = blow molding; 3 = thermoforming; 4 = vacuum forming; 5 = compression forming; 6 = pressure forming; 7 = other. 

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Formation 

process" 

2 

3 

1 

3 

4 

4 

4 

7 

5 

6 

6 
2586 E.F. Gomez, F. C. Michel ]r. /Polymer Degradation and Stability 98 (2013) 2583-2591 

Table3 

Chemical and physical properties of the test specimens. 

Material Chemical and physical properties" 

Total solids (%) Volatile solids (%dw) 

Positive 90.3 ± 5 57.4 ± 1.1 

Negative 99.8 ± 0.1 96.3 ± 2 

PP + 2% additive 99.8 ± 0.1 97.7 ± 0.1 

PS + 2% additive 99.9 ± 0.1 97.0 ± 1.5 

PETE + 1% additive 99.4 ± 0.5 99.9 ± 0.1 

Plastarch 90.9 ± 2.1 57.5 ± 3 

Co-polyester + corn-based plastic 95.2 ± 0.1 99.8±0.1 

Wheat starch-derived plastic 97.8 ± 0.4 98.5 ± 0.5 

PHA 99.4 ± 0.4 90.4 ± 0.5 

Paper pulp + soy wax 94.3 ± 1 91.0 ± 0.4 

Paper pulp 92.0 ± 0.1 92.0± 0.1 

Paper pulp + asphalt 93.4 ± 0.5 90.6 ± 0.3 

Coconut coir 96.8 ± 0.3 98.5 ± 0.5 

Rice hull 94.0 ± 0.4 89.6 ± 0.4 

Composted cow manure 92.5 ± 0.1 89.4 ± 1.0 

Peat fiber 92.1 ± 0.3 97.8 ± 0.5 

a Values are means ± SD of three replicates. 

2.3. Biodegradation during composting 

Three materials were tested under simulated composting conditions. These included PETE + 1% additive, plastarch and paper 

pulp+ soy wax (Tables 2 and 3). The experiments were conducted 

in triplicate for a period of 115 days. 

The test conditions used were based on a protocol described in 

ASfM 05338-98 (2003) [25]. This test is a measure of the degree 

and rate of carbon conversion to C02 under conditions that mimic a 

commercial scale industrial composting facility. 

An 80 g sample of each test specimen was mixed with 350 g dry 

of mature compost inoculum (Table 4). The compost inoculum was 

obtained from a full-scale windrow composting facility featuring a 

concrete surface and controlled aeration system at OARDC. The 

compost contained a mixture of dairy manure and hardwood 

sawdust as described elsewhere [26]. 

The compost was collected at various locations on the windrow 

and screened to less than 10 mm and large inert items were discarded. The screened compost was amended with ammonium 

phosphate (Fisher Scientific, PA, U.S.) to give a C:N ratio of 20:1 

including the carbon content of the test specimen. The initial 

moisture content of the mixture was adjusted to 60% (wet-weight 

basis). 

The compost and test specimens were incubated in 4-L 

(working volume) vessels (length 30 em and diameter 15 em), 

made of PVC pipe placed in a 55 oc incubator (BioCold Environmental inc., MO. U.S.). Each vessel contained approximately 1100 g 

of material on a wet -weight basis. The reactors were aerated from 

below at 100 ± 1 ml/min to maintain aerobic conditions. To avoid 

drying during the experiment, air was saturated by bubbling 

Table4 

Initial mean characteristics of the aerobic and anaerobic organic substrates. 

Organic substrate Chemical and physical properties" 

Total solids(% ww) Volatile solids(% dw) 

Compost" inoculum 24.3 ± 2.0 88.9 ± 1.0 

Soil mixture'" 87.4 ± 0.1 2.96 ± 0.1 

Anaerobic seedd sludge 8.92 ± 0.5 59.5 ± 2.0 

Medina County< OFMSW 47.2 ± 7.2 60.3 ± 1.2 

a Values are means ± SD of three replicates. 

b Dairy manure and hardwood sawdust mature compost. 

< This is the value before adding water to reach 60% of the water holding capacity. 

d Methanogenically active municipal sewage sludge. 

• OFMSW = the organic fraction of municipal solid waste. 

Total carbon (%dw) Total nitrogen (%dw) Film thickness (mm) 

41.8 ± 0.1 0.03 ± 0.01 0.35 ± 0.01 

82.9 ± 0.1 0.06 ± 0.003 0.37 ± O.D1 

82.9 ± 0.3 0.04 ± 0.01 0.37 ± 0.03 

88.8 ± 1 0.05 ± 0.01 0.23 ± O.D1 

64.6 ± 0.1 O.D1 ± 0.002 0.36 ± O.D1 

60.9 ± 0.2 0.07 ± 0.01 0.48 ± 0.03 

51.9 ± 0.3 0.10 ± 0.01 0.72 ± 0.02 

49.4±0.1 0.74 ± 0.004 0.50 ± O.D1 

50.7 ± 0.3 0.45 ± 0.01 0.62 ± O.D1 

46.9 ± 0.3 0.06± 0.01 2.14 ± 0.03 

42.1 ± 0.1 0.10 ± O.D1 2.74 ± 0.01 

46.9 ± 0.03 0.22 ± 0.02 2.61 ± 0.1 

46.7 ± 0.3 0.26 ± 0.002 1.09 ± 0.02 

38.3 ± 0.1 14.1 ± 0.06 1.24 ± 0.02 

40.5 ± 0.01 1.12 ± 0.05 2.40 ± 0.1 

45.4 ± 0.3 0.49 ± 0.07 1.74 ± 0.05 

through bottles containing water at the incubator temperature. 

The air exiting the vessels was passed through flasks in a separate 

water bath set at 9 octo condense moisture from the off-gas. The 

off-gas was then analyzed for percent C02 using an infrared gas 

analyzer (Vaisala model GMT 220, range 0-20%). C02 data was 

automatically recorded using a Campbell Scientific model 23XL 

data logger for each vessel every hour. Each vessel was also 

equipped with a K-type thermocouple to measure the temperatures of the composts mix near the center of the compost vessel, 

and was recorded automatically every 12 min. A more complete 

description of the laboratory-scale composting system can be 

found elsewhere [27]. 

2.4. Biodegradation during anaerobic digestion 

The biodegradation of four materials was compared during high 

solids batch anaerobic digestion. These included PP + 2% additive, 

PETE + 1% additive, plastarch and a co-polyester + corn-based 

plastic (Tables 2 and 3). The experiments were conducted in triplicate for a period of 50 days. 

The anaerobic degradation of the polymeric materials was 

compared under high-solids AD conditions based on a protocol 

described in ASfM 05511-02 [ 23] international standard. The test 

measured the conversion of samples to C02 and CH4 during incubation under controlled anaerobic conditions. For this study test 

specimens were exposed to an active methanogenic inoculum 

derived from a full-scale anaerobic digester treating municipal 

sewage sludge. These conditions resemble those found in highsolids AD digestors and in biologically active landfills, but not in 

typical landfills where water is excluded and removed. 

Total carbon (% dw) Total nitrogen (% dw) pH 

48.7 ± 5.5 

1.19 ± 0.2 

36.8 ± 1.0 

89.6 ± 1.3 

2.37 ± 0.2 

0.13 ± 0.02 

7.21 ± 0.2 

0.92 ± 0.2 

7.95 ± 0.04 

7.43 ± 0.4 

8.30 ± 0.01 

7.50 ± 0.4 

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£.F. G6mez. F.C. Michel ]r. I Polymer Degradation and Stability 98 (2013) 2583- 259! 2587 

The AD assays were conducted in 2-L (working volume) 

laboratory-scale batch reactors. Temperatures were maintained at a 

mesophilic (37 ± 1 •C) range by means of incubators. Test specimens (25 g of sample carbon) were mixed with 750 g wet of 

methanogenically active sludge obtained in October of 2010 from a 

full-scale (3000 m3) anaerobic digester located at the City of Akron 

wastewater treatment plant and operated by KB Compost Services, 

Akron, Ohio l28 j. This was mixed with 187.5 g wet of the organic 

fraction of municipal solid waste (OFMSW) of the Medina County, 

Ohio Solid Waste District to achieve the desired solids content for 

the test and to provide supplemental nutrients for the anaerobic 

microbial consortia. The chemical properties of the seed sludge and 

OFMSW substrate are shown in Table 4. Ammonium phosphate 

(Fisher Scientific, PA, U.S.) was added to the mixture to adjust the 

C:N ratio to a value of 20:1 considering the carbon content of the 

test specimen. 

The volumetric production and CO:! and C~ content of the 

biogas produced in the AD experiments were analyzed by volume 

displacement and gas chromatography as described by G6mez et al. 

[28}, respectively. This information was used to calculate the moles 

of carbon emitted from each reactor. 

2.5. Analytical methods 

Solids content in soil, organic substrates and test specimens was 

determined by drying samples to a constant weight at 80 •c. The 

volatile solids content was determined using an ashing oven set at 

500 •c for 4 h. pH was determined using a pH electrode (TMECC 

04.11-A 1:5 slurry method, mass basis). Carbon (TMECC 04.01 -A 

combustion with CO:! detection) and nitrogen content (TMECC 

04.02-D oxidation, Dumas method) were determined by the Service Testing and Research laboratory at the OARDC. 

Selected test specimens were also analyzed before and after soil 

incubation using scanning electron microscopy (SEM) (Hitachi S3500N, Hitachi High Technologies America, Inc., CA, U.S.). Samples 

were coated with platinum to a thickness of 02 kA" using a 

Hummer® 62 sputtering system (Anatech USA, CA, U.S.). A 15 Kv 

electron beam was applied. 

2.6. Statistical analysis 

Three independent replicates were used for each treatment. 

Analysis of variance (ANOVA) was calculated for the average final 

cumulative percent of carbon loss for each of the studies. Comparisons for all pairs of final cumulative biodegradation means 

were performed using Tukey- Kramer HSD analysis. All conclusions 

were based on a significant difference level of a = 0.05. The statistical analyses were performed using JMP statistical program 

version 9 (SAS Institute Inc., SAS Campus Drive, NC, U.S.). 

3. Results and discussion 

3.1. Biodegradation during soil incubation 

The importance of understanding the biodegradability of plastics in soil has increased since these are released inadvertently into 

the environment where they may persist. Plastics comprise a 

relatively large fraction of the ubiquitous pollution found worldwide in both land and ocean environments [29]. In addition. 

intensive and semi-intensive agriculture utilizes large quantities of 

these materials annually in the form of mulches, as plantable pots, 

nursery containers [30].This has resulted in the recent development of biodegradable agricultural plastics for these applications 

[31,32]. One example of this is biodegradable plant nursery pots. 

Some containers are designed to be plantable pots (e.g. rice hull and 

coconut coir) allowing them to degrade in the soil after planting, or 

to be composted at plant nurseries rather than being land filled. 

An initial experiment was conducted to assess the effect of 

particle size on biodegradation during soil incubation. Seven materials were tested and the amount of carbon converted to C02 was 

compared using student's r method for particle size effect. Student's 

t method revealed that out of the seven materials studied in this 

experiment, only one, a co-polyester +com-based plastic, showed 

a significant effect of particle size on biodegradability. A significantly greater extent of biodegradation was obse rved for copolyester + corn-based plastic in 1 x 1 em square film form 

(55.1 ± 2.1%) after 660 days as compared to a ground sample of the 

same material (39.71 ± 2.4%). For the rest of the materials. there 

was not a significant effect of particle size on biodegradation. Results from this study suggested that for most of the materials 

studied, biodegradability in soil was not greatly affected by particle 

size under the experimental conditions used in the study. 

A second soil experiment was conducted to evaluate the relative 

biodegradability of thirteen different test specimens in 1 x 1 em 

square film form. These included bio-based pl;~stics. plastics 

amended with additives that are meant to enhance biodegradability and natural fiber composites. The experiment was conducted for a period of 660 days. The initial moisture content of the 

mixes was 16.6 ± 2.1% and the final mean soil moisture content on a 

wet-weight basis across all treatments was 14.3 ± 3.3% (wetweight basis) which is 84.9 ± 2.4% of the 60% moisture holding 

capacity of the soil mixture. The positive control (cellulose paper) 

exhibited 74.2 ± 4.5% conversion during the period of incubation. 

For some bio-based plastics and the positive controls (cellulose 

paper), the initial rate of mineralization was rapid (Fig. 1). Most of 

the mineralization took place during the first 300 days of incubation (Fig. 1 ). The most rapid initial rate of conversion was observed 

for co-polyester + corn-based plastic with almost 34.6 ± 2.4% 

mineralized during the first 55 days of the experiment. The extent 

of PHA biodegradation was initially lower. but its extent surpassed 

that of co-polyester + corn-based plastic after approximately 280 

days reaching a value of 48.5 ± 4.6%. For the wheat starch-derived 

plastic and plastarch conversion rates were 14.2 ± 0.8 and 

24.6 ± 1.4% after 110 and 280 days of experiment, respectively. 

Final (660 days) cumulative biodegradation values during soil 

incubation for the positive control, PHA and co-polyester + combased plastic were 74.2 ± 4.5, 69.2 ± 6.4 and 55.1 ± 6.1%, respectively. For the wheat starch-derived plastic and plastarch the final 

conversion reached 19.7 ± 1.1 and 31.3 ± 1.7%, respectively. 

SEM images of PHA and co-polyester + com-based plastic 

before and after mineralization showed substantial changes in the 

tOO% 

90>/. ; 

~ 80% 

0 

~ 10'¥. 

a 80% I s~o 

~ 4<)0,. $ 

~ 30% 

i 20% ii 

0 tcm 

0% 

0 

- Posi.We (cellulose popcr) --C4)oj>Oiy<S~er+ ccm.based polym<r _,._Wheat surdt-U:ri .. ·cd resin 

-PETE+ 1%additi\-c 

-#-PHA 

........-PJ~ucb 

--- PP+ :!%additive 

--- -· PS + 2''0 addipve 

100 )00 oiOO soo l'IID•(doys) 

600 100 

Fig. 1. Cumulative carbon loss (C(h-c) as percentage of initial carbon (±cumulative 

standard error) for bio-based plastics and for conventional plastics amended with 

additives during 660 days of soil incubation. For some data points sta ndard error bars 

are smaller than m.1rkers. 

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Exh. RX-B 

- ·-·---·- ··· .. 
2588 E.F. Gomez. F.C. Midoel Jr. I Polymer Degradacion and Stability 98 (2013) 2583- 2591 

Fig. 2. Scanning electron micrographs of plastics during 2 years of soil incuba tion. From top to bonom: PHA (a : initial. b: fi nal). co-polyester + corn-based plastic (c: initial d : final). 

polypropylene + 2% additive (e: initial, f: final) and coconut coir (g: initial. h·. final). 

surface of the PHA material (Fig. 2A and B) and some degradation of 

the co-polyester + corn-based plastic (i'iF.· / C and D). 

For conventional plastics and the same plastics amended with 

additives that were supposed to enhance biodegradability, almost 

no biodegradation was observed afte r nearly two years of incubation in soil (Fig. 1 ). The highest observed conversion during soil 

incubation was 1.0 ± 0.1% (PP + 2% additive). For all other plastics 

amended with additives, the final cumulative biodegradation 

ranged between 0.9 and 1%. These values were less than that 

measured for the negative control (PP) which reached a fi nal cumulative conversion of 1.3 ± 0.7%. Although they were not significantly different. SEM images did not reveal qualitative changes in 

the appearance ofPP or PP + 2% additive after the 2 year incubation 

period (Fig. 2E and F). 

The mineralization in soil of the natural fiber composite materials was most rapid during the first 65 days of the experiment 

JOQOr .. 

90~ 0 

~ $0, • . 

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~ ~ 

'; O~ '$. 

~ 30~ 

Zi 

, 20% 

; JO% v Oo/o 

·-···-·---- -+-Positiv..: (c~Uulo:s..· paper) _.,_ P:.p;.·r pulp l- ~.a t 

--.-c"romu car - - A ·· rem IW>cf '!' woodputp 

iOO 

--roper poolp mvos dcowUlAtliUI'C 

--e-Rice l1.1tl 

)00 

iimt' (days) 

400 500 600 

Fig. 3. Cumulative carbon loss (CO,- C) as percentage of initial carbon (±cumulative 

standard error) for natural fiber composites during 660 days of soil incubation. For 

some data poinrs standard error bars are smaller than markers. 

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E.F. C6mez. F.C. Michel ]r. 1 Polymer Degradation and Scability 98 (2013) 2583- 2591 2589 

(Fig. 3 ). This was followed by a period of slow mineralization until 

the termination of the experiment (fig. 3). After 660 days, the 

mineralization percent of the composted cow manure. paper pulp 

and paper pup+ asphalt were 35.5 ± 2.3, 313 :1: 3.6, 29.4 ± 2.1%, 

respectively. Lower final conversion values were observed for rice 

hull, peat fiber and coconut coir with va.lues of21.1 :1:2.6.18.3:1:0.7 

and 14.4 :1: 2.5%, respectively. SEM images of coconut coir revealed 

some surface changes indicative of biodegradation (Fig. 2G and H). 

Approximately 74.2% of cellulose added to soil was converted to 

C02 after 660 days. This is similar to the conversion of cellulose of 

80% reported in a 800 day soil incubation conducted to evaluate 

how carbon substrates affect microbial biomass yield in soil 

biodegradation tests 133]. 

The highest biodegradability observed during soil incubation 

was reported for PHA (70%); a polyhydroxyalkanoate-based plastic. 

This was similar in magnitude to the extent of mineralization of the 

cellulose positive control (cellulose paper). Bacterial polyhydroxyalkanoates are intracellular aliphatic polyesters of various 

chain lengths 134]. Several studies have been conducted to study 

the biodegradability of aliphatic polyesters under different conditions 135- 38]. Mineralization of these polymers is mainly achieved 

by cleavage of the ester bonds which occurs due to both enzymatic 

and chemical hydrolysis 139). 

Statistically analysis revealed that significant differences in the 

extent of biodegradation (F15.

32 = 822.2, P < 0.0001) existed between group means. Tukey-Kramer HSD analysis revealed that 

among bio-based plastics, the difference between PHA and the 

positive control (cellulose paper) was not significant. Analyses also 

revealed that differences were not significant between plastics 

amended with additives that are meant to enhance ~iodegradability and the negative control (PP). For natural fiber composites all 

test specimens differed significantly from both the positive and 

negative controls {Fig. 3 ). 

The results of this study indicate that conventional plastics 

containing additives do not biodegrade any faster than nonadditive containing plastics in soil. Manufacturers of these additives claim that if at least 1-5% (by weight) of their additive is 

added to plastics products, these will fully biodegrade when 

disposed of in microbe-rich environments. These claims are not 

supported by the findings of this study. 

The greatest extent of biodegradation among the fiber composite materials tested was the com posted cow manure (35%). This 

was unexpected since low carbon conversion rates were anticipated for the composted cow manure since it had previously been 

biologically degraded. After undergoing a composting cycle, much 

of the carbon contained in the cow manure was expected to be 

stable and humified [26,40]. However, much less extents of 

degradation were observed for uncomposted composites produced 

from rice hulls, from peat fiber pot and coconut coir. For these 

materials, the extent of degradation in soil ranged from 14 to 21% 

(Fig. 3). These materials have been used as natural composites due 

to their low price and structural strength 141.42]. Approximately 

46% of coconut coir is lignin (431 as is 21-40% of rice hulls [44] 

which may have limited their biodegradation. 

32. Biodegradation during composting 

Three different materials were evaluated for their relative rate of 

degradation during composting. The materials were composted at 

55 •c under aerobic conditions for a period of 115 days. The tested 

materials included plastarch, paper pulp + soy wax and PETE+ 1% 

additive (Tables 2 and 3). 

The initial moisture content was adjusted to 60% and the final 

mean compost moisture content across all treatments was 

64.2 :1: 33% (wet-weight basis). 

Mineralization under corriposting conditions occurred at a rapid 

initial rate for both the positive control and the plastarch material 

during the first 80 days (Fig. 4). Overall, the positive control (cellulose paper) exhibited 78.4 ± 3.5% conversion during com posting. 

For paper+ soy wax, a majority of the mineralization took place 

during the first 15 days. For PETE + 1% additive no significant 

conversion was observed over the entire period of study (Fig. 4). 

The final cumulative biodegradation during composting for plastarch, paper + soy wax and PETE + 1% additive was 51.3 :1: 4.9, 

12.4 :1: 2.7 and 0.6 :1: 3.7%. respectively. The ANOVA indicated that 

statistically significant differences in the extent of biodegradation 

(F4,1 = 496.6, P < 0.0001) existed between group means. TukeyKramer HSD analysis revealed that all test specimens differed from 

the positive control. However, PETE + 1% additive did not differ 

significantly from the negative control. 

None of the tested materials mineralized at rates comparable to 

the positive control material. The highest cumulative biodegradation during composting was observed for the plastarch containing 

material (513%). Starch is made of repeating glucose units linked by 

glucosidic bonds that are susceptible to enzymatic attack. Uses and 

applications of starch in its native form or blended with other 

materials have been discussed 145.46]. Biodegradation of the starch 

containing portion of the material has been reported 147.48). 

However the reason that the plastarch degraded more slowly than 

cellulose is not known. 

After 20 days, only 12% of the paper pulp composite was converted to C02 during composting. The low level of cumulative 

degradation could be related to inhibitory properties of the soy 

derived wax on the microbial consortia or limiting water accessibility. For plastics containing additives. no degradation was 

observed. Additives did not improve the biodegradability of PETE 

during composting. 

3.3. Biodegradation during anaerobic digestion 

Understanding the biodegradation of different materials in 

anaerobic conditions such as in industrial sewage sludge AD systems. landfills and anoxic environments is important since under 

these conditions, microorganisms mineralize organic substrates to 

both c~ and methane. Methane itself can be used as a fuel source 

but if not captured it has a global warming potential 21 times 

stronger than C02. Since in the U.S. only 30% of the landfills capture 

methane and among those that do capnue. only a small percentage 

of the methane produced is recovered, then biodegradable plastics 

in landfills have a greater potential than composted biodegradable 

plastics to contribute to global warming. 

100% 

90% - Positivt (oelluiOIC paper) 

'!:: 

s 10% = 0 

~ iO% 

~ 6001. 

~0 % ;;; ·10% '/. 

-.-Papc:r pulp + soy \\at 

--·-·PElE + l%ac:klitiYC 

~ 30% 

"' . 

E 20% 

» 

"' 10% 

~'. 

0 10 40 60 100 120 Timt (<Ia)'$) 

fig. 4. Cumulative carbon loss (C02-C) as percentage of initial carbon (±cumulative 

standard error) for bio-based plastics. conventional plastics amended with additives 

and natural fiber composites during 115 days af thermophilic composting. For some 

data points standard error bars are smaller !han markers. 

Resp. Mot to Compel and foe Sanctions 

Exh. RX-B 
2590 E.F. Gomez, F.C. Michel Jr. I Polymer Degradation and Stability 98 (2013) 2583-2591 

The biodegradability of polymeric materials exposed to an 

active methanogenic inoculum was studied under controlled laboratory conditions that resemble those found during active AD for a 

period of 50 days. They likely differ somewhat from the conditions 

within a landfill where moisture is usually removed and a greater 

diversity of materials is present. Yet the extent of biodegradation is 

likely similar to what would ultimately occur over many years in a 

landfill environment 

Materials tested included plastarch, co-polyester + com-based 

plastics, PP + 2% additive and PETE + 1% additive (Tables 2 and 3). 

The mean methane content in the biogas across treatments during 

the entire period of study was 54.1 ± 6.1%. 

During the AD incubation, the positive control (cellulose paper) 

exhibited 74.1 ± 4.8% conversion. For plastarch, the carbon conversion rate to biogas was similar to the positive control (cellulose 

paper) for the first 7 days (Fig. 5). However, after this period, the 

rate of conversion slowed as compared to the positive control 

through day 28. In contrast. no significant mineralization was 

observed for the plastics containing additive samples over the 

entire period of the study. 

The final cumulative carbon conversion during AD for plastarch 

and co-polyester + corn-based plastic were 26.4 ± 3.5 and 

20.2 ± 4.4%, respectively. The final conversion values for PP + 2% 

additive and PETE + 1% additive were 3.1 ± 3.7 and 2.2 ± 1.6%, 

respectively. The ANOVA indicated that statistically significant 

differences in the extent of biodegradation (f5•

12 =50. 7, P < 0.0001) 

existed between group means. The Tukey-Kramer HSD analysis 

revealed that the bio-based plastics were significantly different 

than the positive control but not different from each other. There 

was no significant difference in the carbon conversion of the 

negative control (PP) and the plastic containing the additive. 

The biodegradability of different bio-ba.sed materials including 

cellulose and starch [ 49.50] has been investigated previously under 

anaerobic conditions [51,52]. Vagi et al. (53) studied the biodegradability of cellulose powder under mesophilic (35 •C) and 

thermophilic (55 •C) AD conditions. Cellulose powder reached a 

cumulative conversion of 80% under both temperature conditions. 

Other authors have also studied the anaerobic mineralization of 

aliphatic polyesters. Abou-Zeid et al. [54) conducted a study to 

determine the biodegradability of the natural polyesters poly(bhydroxybutyrate) (PHB), poly(b-hydroxybutyrate-co-11.6%-bhydroxyvalerate) (PHBV) and the synthetic polyester poly(ocaprolactone) (PCL) using different anaerobic sludges and individual strains. Biodegradability of the powdered materials was 

measured as the percent of weight Joss. They found that almost all 

the PHB was converted in 9 days, but only 60 and 30% weight loss 

100% 

90% --Posith·e (cellulose paper) 

.....,._ Co-pdyes1er + Cont·ba$cd po}yuk:r 

.£ 80'/o ....,_Piastarch 

~ --·PP+ 2%addirive -2 70% 

~ -+-PEl'E+ l%addiri\<e 

:li 60% 

j 50% 

'0 40% '$ 

! 30% 

~ 20% ~ 

Q lO% 

0% 

0 10 20 JO 40 50 Tim< (days) 

f'1g. 5. Cumulative carbon loss (CO,-C) as percentage of initial carbon (:!:cumulative 

standard error) for bio-based plastics, conventional plastics amended with additives 

and natural fiber composites during 50 days of anaerobic digestion. for some data 

points standard error bars are smaller than markers. 

was observed for the PHBV and PCL. respectively. Similar results 

were reported by Shin et al. [55 I in which nearly complete conversion was observed for the natural bacterial polyester but no 

biodegradability for synthetic analogs was observed under simulated landfill conditions. 

The results of this study indicate that materials have different 

rates of mineralization under different end of life scenarios. For 

example, the positive control reached 70% conversion in 25 days 

during AD while 75 and 400 days were needed to reach the same 

extent of conversion under com posting and soil incubation conditions, respectively. The plastarch material degraded faster under 

composting conditions reaching 50% conversion in 85 days than 

under AD and soil incubation conditions where only 26 and 30% 

was converted after 50 and 660 days, respectively. For copolyester + corn-based plastic 20% of the material was converted 

during 20 days of soil incubation while 50 days were needed to 

reach the same value during AD. Ultimately, co-polyester + cornbased plastic reached 55% conversion after 660 days of soil incubation. Conventional plastics and those containing additives did 

not degrade at all under any of the three conditions. 

Biodegradable plastics are potential alternatives to petroleumbased materials that can be incorporated into organic recycling 

schemes based on anaerobic digestion or composting. They also 

could potentially reduce the pollution associated with conventional 

plastics and therefore lead to the development of products that are 

more environmentally friendly. Ideally, biodegradable materials 

must be useful for a predetermined service life and then biodegrade 

in a short period of time, leaving no visible fragments and no toxic 

residues when composted or anaerobically digested. Disposal of 

these materials in landfills as opposed to anaerobic digestions is not 

recommended since under anaerobic conditions they biodegrade to 

form methane and most landfills capture only a small fraction of 

the methane created ! 56]. 

4. Conclusion 

In this study, the relative biodegradability of a range of polymeric materials and natural fiber composites used for various 

commercial applications was investigated under composting, soil 

incubation and anaerobic digestion conditions. The validity of the 

tests was confirmed in that positive controls (cellulose paper) 

biodegraded by more than 70% in all three systems in a reproducible manner. 

While some of the bio-based plastics and natural fibers biodegraded to an appreciable extent. plastics containing additives 

that supposedly confer biodegradability to polymers such as polyethylene and polypropylene did not improve the biodegradability 

of these recalcitrant polymers. SEM analysis confirmed that substantial biodegradation of polyhydroxyalkanoate-based plastics 

occurred and that some surface changes occurred in copolyester + corn-based plastic and coconut coir materials. However, SEM confirmed that no degradation of polypropylene and 

polyethylene occurred, even after amendment with additives 

meant to confer biodegradability. 

The relative biodegradability of the materials during long-term 

soil incubation was PHA > co-polyester + corn-based plastic > 

composted cow manure > plastarch > paper pulps > natural 

fibers > conventional plastics containing additives to enhance 

biodegradability = conventional plastics. For anaerobic digestion 

and composting the relative biodegradability was plastarch > copolyester + corn-based plastic > conventional plastics with additives and plastarch > paper pulp + soy wax > conventional plastic 

with additives. respectively. 

Over the time scale of organic recycling processes (composting 

and anaerobic digestion) most of the bioplastics biodegraded to 

Resp. Mot to Compel and for Sanctions 

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-------------------------·-·---------·--··-·----
E.F. Gomez, F.C. Michel]r. I Polymer Degradation and Stability 98 (2013) 2583-2591 2591 

only a limited extent. Furthermore, under anaerobic incubation, 

some of the bio-based plastics biodegraded to generate methane, a 

potent greenhouse gas that unless captured may negate the 

perceived environmental benefits of using these materials. Biodegradable plastics made from petroleum (Class II), may have more 

adverse environmental impacts than conventional plastics (Class I) 

if their ultimate fate is landfilling and anaerobic conversion to 

methane. 

Acknowledgments 

The authors thank the Ohio State University Department of 

Food, Agricultural and Biological Engineering for financial support 

to the main author during this project. We would also like to thank 

the OSU Molecular and Cellular Imaging Center at OARDC for 

assistance with scanning electron micrographs. 

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of poly\I<Kric acid) under rnesophilic and thermophilic condirions using a new 

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[54] ;\bou-Zeid D-M, iViiiller R-1. Deckwer W·D. Degradation of natural and synthetic polyesters under anaerobic conditions. J Biotechnol 2001 ;85:J 13·--26. 

[55] Shin P, Kim M, Kim j. Biodegradability of degradable plastics exposed ro 

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solid waste'! perspectives from a n.1tional landfill greenhouse gas inventory 

model. Environ Sci Techno! 201 'I :45:5470-6. 

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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 

RESPONDENT'S FIRST SET OF REQUESTS 

FOR PRODUCTION OF DOCUMENTS 

Respondent ECM BioFilms, Inc. ("ECM"), by counsel and pursuant to Rule 3.37 of the 

Federal Trade Commission's Rule ofPractice for Adjudicative Proceedings ("Rules"), hereby 

requests that Complaint Counsel for the Federal Trade Commission produce the following 

documents and/or tangible things for inspection and copying at Emord & Associates, P.C., 3210 

South Gilbert Road, Suite 4, Chandler, Arizona, 85286, or at such time and place as may be 

agreed upon by all counsel. 

INSTRUCTIONS 

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

production based on all information within the Federal Trade Commission's possession, domain, 

custody, or control, including such information within the personal knowledge of those 

employed by the FTC and by those acting on the FTC's behalf. 

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

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

thing is because it is not in your possession, dominion, control, or that of a person from whom 

1 

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Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
you could obtain it, state the name, address, and telephone number of any person or entity you 

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

3. Your response is required within 30 days after service of these Requests per 16 

C.P.R.§ 3.37(b). 

4. If you object to any of the requests, answer to the extent that each request or part 

thereof is not objectionable, and state the precise part ofthe request to which you intend to 

object. Please provide each ground for such objection in sufficient detail to permit Respondent's 

counsel to evaluate the legal sufficiency of same. 

5. If, in answering these Requests, you encounter any ambiguities when construing a 

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

construction used in responding. 

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

demanded in these Requests and information is not provided on the basis of such assertion, you 

shall, in your response, identify the nature of the privilege claimed, together with the following 

information: (a) the date of the responsive document(s); (b) the sender of the document(s); (c) 

the addressee(s) or recipient(s); (d) the number of pages; (e) the subject matter; (f) the basis for 

which the privilege is claimed; (g) the names of all persons to whom copies of any part of the 

document(s) were furnished; (h) the present location ofthe document(s) and all copies thereof; 

and (i) each person who has ever had possession, custody, or control of the document(s), to the 

extent known. 

7. If the requested document(s) are maintained in a file, the entire file folder is 

included in the request for production of those documents generally, to the extent such 

production is reasonably necessary for context. 

2 

Resp. Mot. to Compel and For Sanctions 

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8. You are under a continuing obligation to supplement your answers to these 

document production requests under Rule 3.31(e). Every Request for Production herein shall be 

deemed a continuing Request for Production, and the FTC is to supplement its answers promptly 

if and when it obtains responsive documents which add to or are in any way inconsistent with the 

FTC's initial production. 

9. Unless the context clearly requires otherwise, the singular form of any term used 

herein shall include the plural, and vice versa. The present tense of any verb shall include the 

past tense, and vice versa. Similarly, the masculine gender shall include the feminine, and vice 

versa. 

10. The terms "and" and "or" in these Requests shall be construed conjunctively or 

disjunctively as necessary, to make the applicable sentence or phrase inclusive rather than 

exclusive and to ensure a complete, thorough, and accurate response. 

11. Unless otherwise stated, the relevant time period for purposes of these Requests is 

the time period between January 1998 and the date ofhearing in this case. 

DEFINITIONS 

Notwithstanding any specific definition set forth below, each word, term, or phrase used 

in these Requests is intended to have the broadest meaning permitted under the Rules of Practice 

of the Federal Trade Commission. 

1. The terms "Complaint Counsel," "you," "your," "FTC," "Complainant," or 

"Commission" are interchangeable in meaning and are to be understood to include all 

employees, agents, attorneys, consultants, representatives, officers, and persons acting or 

purporting to act on behalf of the United States Federal Trade Commission, other than the 

3 

Resp. Mot. to Compel and For Sanctions 

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entities that are identified in Practice Rule 3.35(a) as individuals or entities outside the scope of 

discovery for purposes of these requests. 

2. The term "Document" means documents and other tangible things as defined in 

the broadest sense permissible under the Rules of Practice of the Federal Trade Commission and 

shall include, without limitation, all written (whether handwritten, typewritten, computer 

printed or otherwise generated), recorded, graphic or visual matter of material of any kind in 

original format or, if an original is not available, any copies, as well as any non-identical copies 

(regardless of origin and whether or not including additional writing thereon or attached thereto) 

and whether or not still in existence and drafts of any: books, papers, photographs, video tapes, 

movie films, tapes or other photographic recordings, microfilm, microfiche, computer printouts, 

audio or video tape recordings, magnetic tapes, punch cards, records, reports, letters or any 

correspondence, electronic mail ("e-mail") or similar electronic communications, telegrams, 

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worksheets, checks, logs, ledgers, payrolls, tax records, audits, reviews, sketches, graphs or 

graphics, pamphlets, brochures, manuals, financial reports, financial summaries, summary 

statements, lists, agreements, purchase orders, expense records, purchase and sale statements or 

their equivalent, depositions, interview transcripts or their equivalent, press releases in 

publications, discs, data cells, drums, printouts, data compilations, maps, lawsuits including all 

pleadings or memoranda submitted to or for submission to any court, administrative agency, 

association, or Governmental tribunal, whether in or outside the United States, text messages, 

phone logs, phone bills, internet social networking posts or entries, internet web posts or entries 

4 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
of any kind, any and all other types of tangible things in whatever form upon or in which 

information is or may be recorded, whether mechanical, electronic or handwritten, including 

any physical file or its equivalent in which any such document or tangible thing has been or is 

stored or maintained. . 

3. The term "Correspondence" is used in the broadest sense to include any 

communication through the exchange of written or spoken word, including, but not limited to 

any such exchange through letters, electronic mail ("e-mail") or similar electronic 

communications, text messages, SMS messages or similar electronic communications, 

telegrams, telexes, memoranda, facsimiles, notes, cards, and phone conversations and records 

thereof. 

4. The term "Person" is used in the broadest sense to include natural persons, public 

or private corporations, charitable or non-charitable corporations, and their subsidiaries that are 

divisions, proprietorships, partnerships, Governmental entities, associations, organizations, 

groups, trusts, estates, and any other form of an entity or organization. Any reference herein to 

a party that is a corporation, partnership, or any entity other than a natural person, shall include 

reference to all past and present subsidiaries, affiliates, directors, officers, employees, and 

agents of the entity. 

5. The term "Personnel" is used in the broadest sense to include natural persons, 

Governmental entities, and any other form of an entity or organization employed by or acting as 

agents for Complainants including their respective attorneys, agents, employees, and all persons 

acting on their behalf including, without limitation, the other Complainants and their agents. 

6. The terms "Pertaining to" or "Coneeming" mean relating to, referring to, 

constituting, containing, embodying, reflecting, identifying, stating, dealing with, or is in any 

5 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
way pertinent to or associated with the specified subject, including documents concerning the 

preparation of other documents. 

7. The terms "Article" or "Publication" shall refer to all pieces of writing including, 

but not limited to, newspaper pieces, magazine pieces, and information released or appearing in 

scientific peer-reviewed journals. 

8. The term "Communication" shall include any oral statement, dialogue, colloquy, 

discussion or conversations, and also means any transfer of thoughts or ideas between persons 

by means of documents, and includes any transmittal of information in the form of oral or 

written facts, ideas, inquiries, or data transfer from one location to another by electronic or 

similar means, including without limitation, writings, telephonic conversations and oral 

conversations other than telephonic conversations, SMS messaging, and internet web posts. 

9. The term "ECM" or "Respondent" shall include, without limitation, ECM 

BioFilms, Inc., its agents, employees, officers, or anyone else acting on its behalf. 

10. The term "Complaint" as used throughout these requests for production shall refer 

to the Complaint filed by the Federal Trade Commission against ECM BioFilms, Inc., Docket 

No. 9358 (Oct. 28, 2013). 

11. The terms "test," "analysis," "protocol," "study," "survey," "data," or 

"experiment," shall include, without limitation, any procedure intended to establish the quality, 

credibility, veracity, plausibility, performance, or reliability of scientific theories, concepts, or 

ideas, or any measurement (whether or not "scientific" or valid) of human, scientific, or other 

facts and statistics collected together for reference or analysis. 

6 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
12. The term "plastic" as used throughout these requests shall collectively refer to any 

synthetic material made from a wide range of polymers such as polyethylene, PVC, nylon, and 

others, including, but not limited to, all thermoplastics and thermosets. 

13. The term "ECM Plastic" means any plastic product treated with or incorporating 

an ECM additive. 

14. The term "ECM Additive" means the additive manufactured by ECM for 

inclusion in plastics products as a component of the finished plastic. 

15. The term "biodegradation" and any variation thereof means decomposition or 

degradation by or through the action of biological and biochemical agents. 

REQUESTS 

Request 1. Provide all documents that concern whether plastics in general and ECM 

Plastics in particular will break down and decompose into elements found in nature after 

customary disposal or in a landfill. 

Request 2. Provide all documents, whether prepared by or for the Commission or any 

other entity, concerning consumer perception, comprehension, or recall (including, but not 

limited to, copy tests, marketing or consumer surveys and reports, penetration tests, recall tests, 

audience reaction tests, and communication tests) of plastics biodegradability; biodegradability 

in general; landfill composition; or conditions of customary waste disposal. 

Request 3. Provide all documents that support or call into question your conclusion 

that ECM's biodegradable claims for degradation are false. 

Request 4. Provide all documents that support or call into question your conclusion 

that consumers likely interpret unqualified degradable claims to mean that the entire product or 

7 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
package will completely decompose into elements found in nature within one year after 

customary disposal. 

Request 5. Provide all documents relating to your contention that express or implied 

representations made in or implied by ECM BioFilm's written advertising or promotional 

materials are false or misleading. 

Request 6. Provide all correspondence between FTC and ASTM and ASTM present 

and past members, officers, directors, or agents. 

Request 7. Provide all documents pertaining to the ASTM standards which concern 

plastics biodegradability, or concern ASTM policies, membership, or revisions to standards. 

RequestS. Provide all documents that relate to your contention that end-consumers 

(as opposed to ECM's trade customers) view, understand, or rely on ECM's written advertising 

materials. 

Request 9. Provide all documents relating to any investigation conducted by you or 

on your behalf relating to any advertising claims or representations concerning the ECM 

MasterBatch Pellets, or any other ECM plastics additive. 

Request 10. Produce all documents concerning your contention that landfills are 

generally anaerobic environments that lack oxygen and that restrict the amount of liquid 

infiltration or moisture content. 

Request 11. Provide all documents concerning plastics chemistry, formation, 

polymerization, formulation, mineralization, enzymatic degradation, or depolymerization in 

biodegradable and non-biodegradable polymers. 

8 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 

---- -------
Request 12. Provide all documents relating to your contention that ECM's tests were 

not designed to support its claims, and that the data from ECM's testing is invalid or cannot 

support reliable conclusions. 

Request 13. Produce all documents concerning the period of time under which 

conventional plastics generally biodegrade, including documents supporting your contention that 

plastics will normally require hundreds of thousands of years to biodegrade. 

Request 14. Produce all documents concerning your definition of"competent and 

reliable" scientific evidence as that definition concerns biodegradation claims for plastics in 

general and ECM' express and/or implied claims challenged by the FTC. 

Request 15. Provide all documents relating to any advertisement or promotional 

material for the ECM Master Batch pellets, other than documents produced by Respondents in 

pre-complaint disclosures or discovery. 

Request 16. Produce all documents identified in any answer to an Interrogatory 

propounded by ECM or on which you rely in answering any Interrogatory propounded by ECM. 

DATED this 3rd day ofDecember 2013 

9 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

Email: jemord@emord.com 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
CERTIFICATE OF SERVICE 

I hereby certify that on December 3, 2013, I caused a true and correct copy of the paper 

original of the foregoing RESPONDENT'S INITIAL DOCUMENT REQUESTS to be served 

as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: kjohnson3(mftc.gov 

Elisa Jillson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: ejillson(mftc.gov 

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

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

Commission's Rules. 

10 

Is/ Jonathan W Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

Email: jemord@emord.com 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-D 
RESPONDENT 

EXHIBIT 

RX-E 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
In the Matter of 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

Docket No. 9358 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

RESPONDENT'S SECOND SET OF REQUESTS 

FOR PRODUCTION OF DOCUMENTS 

Respondent ECM BioFilms, Inc. ("ECM"), by counsel and pursuant to Rule 3.37 of the 

Federal Trade Commission's Rule of Practice for Adjudicative Proceedings ("Rules"), hereby 

requests that Complaint Counsel for the Federal Trade Commission produce the following 

documents and/or tangible things for inspection and copying at Emord & Associates, P.C., 3210 

South Gilbert Road, Suite 4, Chandler, Arizona, 85286, or at such time and place as may be 

agreed upon by all counsel. 

INSTRUCTIONS 

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

production based on all information within the Federal Trade Commission's possession, domain, 

custody, or control, including such information within the personal knowledge of those 

employed by the FTC and by those acting on the FTC's behalf. 

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

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

thing is because it is not in your possession, dominion, control, or that of a person from whom 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
you could obtain it, state the name, address, and telephone number of any person or entity you 

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

3. Your response is required within 30 days after service of these Requests per 16 

C.P.R.§ 3.37(b). 

4. If you object to any of the requests, answer to the extent that each request or part 

thereof is not objectionable, and state the precise part ofthe request to which you intend to 

object. Please provide each ground for such objection in sufficient detail to permit Respondent's 

counsel to evaluate the legal sufficiency of same. 

5. If, in answering these Requests, you encounter any ambiguities when construing a 

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

construction used in responding. 

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

demanded in these Requests and information is not provided on the basis of such assertion, you 

shall, in your response, identify the nature of the privilege claimed, together with the following 

information: (a) the date of the responsive document(s); (b) the sender of the document(s); (c) 

the addressee(s) or recipient(s); (d) the number of pages; (e) the subject matter; (f) the basis for 

which the privilege is claimed; (g) the names of all persons to whom copies of any part of the 

document(s) were furnished; (h) the present location of the document(s) and all copies thereof; 

and (i) each person who has ever had possession, custody, or control of the document(s), to the 

extent known. 

7. If the requested document(s) are maintained in a file, the entire file folder is 

included in the request for production of those documents generally, to the extent such 

production is reasonably necessary for context. 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
8. You are under a continuing obligation to supplement your answers to these 

document production requests under Rule 3.31 (e). Every Request for Production herein shall be 

deemed a continuing Request for Production, and the FTC is to supplement its answers promptly 

if and when it obtains responsive documents which add to or are in any way inconsistent with the 

FTC's initial production. 

9. Unless the context clearly requires otherwise, the singular form of any term used 

herein shall include the plural, and vice versa. The present tense of any verb shall include the 

past tense, and vice versa. Similarly, the masculine gender shall include the feminine, and vice 

versa. 

10. The terms "and" and "or" in these Requests shall be construed conjunctively or 

disjunctively as necessary, to make the applicable sentence or phrase inclusive rather than 

exclusive and to ensure a complete, thorough, and accurate response. 

11. Unless otherwise stated, the relevant time period for purposes of these Requests is 

the time period between January 1998 and the date ofhearing in this case. 

DEFINITIONS 

Notwithstanding any specific definition set forth below, each word, term, or phrase used 

in these Requests is intended to have the broadest meaning permitted under the Rules of Practice 

of the Federal Trade Commission. 

1. The terms "Complaint Counsel," "you," "your," "FTC," "Complainant," or 

"Commission" are interchangeable in meaning and are to be understood to include all 

employees, agents, attorneys, consultants, representatives, officers, and persons acting or 

purporting to act on behalf of the United States Federal Trade Commission, other than the 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
entities that are identified in Practice Rule 3.35(a) as individuals or entities outside the scope of 

discovery for purposes of these requests. 

2. The term "Document" means documents and other tangible things as defined in 

the broadest sense permissible under the Rules of Practice of the Federal Trade Commission and 

shall include, without limitation, all written (whether handwritten, typewritten, computer 

printed or otherwise generated), recorded, graphic or visual matter of material of any kind in 

original format or, if an original is not available, any copies, as well as any non-identical copies 

(regardless of origin and whether or not including additional writing thereon or attached thereto) 

and whether or not still in existence and drafts of any: books, papers, photographs, video tapes, 

movie films, tapes or other photographic recordings, microfilm, microfiche, computer printouts, 

audio or video tape recordings, magnetic tapes, punch cards, records, reports, letters or any 

correspondence, electronic mail ("e-mail") or similar electronic communications, telegrams, 

telexes, memoranda, notes, field notes, marginal notations, complaints, contracts, studies, 

affidavits, agendas, minutes, resolutions, diaries, appointment books, calendars, desk calendars, 

analysis, work papers, statistical reports, circulars, charts, transcripts, bills, invoices, receipts, 

worksheets, checks, logs, ledgers, payrolls, tax records, audits, reviews, sketches, graphs or 

graphics, pamphlets, brochures, manuals, financial reports, financial summaries, summary 

statements, lists, agreements, purchase orders, expense records, purchase and sale statements or 

their equivalent, depositions, interview transcripts or their equivalent, press releases in 

publications, discs, data cells, drums, printouts, data compilations, maps, lawsuits including all 

pleadings or memoranda submitted to or for submission to any court, administrative agency, 

association, or Governmental tribunal, whether in or outside the United States, text messages, 

phone logs, phone bills, internet social networking posts or entries, internet web posts or entries 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
of any kind, any and all other types of tangible things in whatever form upon or in which 

information is or may be recorded, whether mechanical, electronic or handwritten, including 

any physical file or its equivalent in which any such document or tangible thing has been or is 

stored or maintained. . 

3. The term "Correspondence" is used in the broadest sense to include any 

communication through the exchange of written or spoken word, including, but not limited to 

any such exchange through letters, electronic mail ("e-mail") or similar electronic 

communications, text messages, SMS messages or similar electronic communications, 

telegrams, telexes, memoranda, facsimiles, notes, cards, and phone conversations and records 

thereof. 

4. The term "Person" is used in the broadest sense to include natural persons, public 

or private corporations, charitable or non-charitable corporations, and their subsidiaries that are 

divisions, proprietorships, partnerships, Governmental entities, associations, organizations, 

groups, trusts, estates, and any other form of an entity or organization. Any reference herein to 

a party that is a corporation, partnership, or any entity other than a natural person, shall include 

reference to all past and present subsidiaries, affiliates, directors, officers, employees, and 

agents ofthe entity. 

5. The term "Personnel" is used in the broadest sense to include natural persons, 

Governmental entities, and any other form of an entity or organization employed by or acting as 

agents for Complainants including their respective attorneys, agents, employees, and all persons 

acting on their behalf including, without limitation, the other Complainants and their agents. 

6. The terms "Pertaining to" or "Concerning" mean relating to, referring to, 

constituting, containing, embodying, reflecting, identifying, stating, dealing with, or is in any 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
way pertinent to or associated with the specified subject, including documents concerning the 

preparation of other documents. 

7. The terms "Article" or "Publication" shall refer to all pieces of writing including, 

but not limited to, newspaper pieces, magazine pieces, and information released or appearing in 

scientific peer-reviewed journals. 

8. The term "Communication" shall include any oral statement, dialogue, colloquy, 

discussion or conversations, and also means any transfer of thoughts or ideas between persons 

' 

by means of documents, and includes any transmittal of information in the form of oral or 

written facts, ideas, inquiries, or data transfer from one location to another by electronic or 

similar means, including without limitation, writings, telephonic conversations and oral 

conversations other than telephonic conversations, SMS messaging, and internet web posts. 

9. The term "ECM" or "Respondent" shall include, without limitation, ECM 

BioFilms, Inc., its agents, employees, officers, or anyone else acting on its behalf. 

10. The term "Complaint" as used throughout these requests for production shall refer 

to the Complaint filed by the Federal Trade Commission against ECM BioFilms, Inc., Docket 

No. 9358 (Oct. 28, 2013). 

11. The terms "test," "analysis," "protocol," "study," "survey," "data," or 

"experiment," shall include, without limitation, any procedure intended to establish the quality, 

credibility, veracity, plausibility, performance, or reliability of scientific theories, concepts, or 

ideas, or any measurement (whether or not "scientific" or valid) of human, scientific, or other 

facts and statistics collected together for reference or analysis. 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
12. The term "plastic" as used throughout these requests shall collectively refer to any 

synthetic material made from a wide range of polymers such as polyethylene, PVC, nylon, and 

others, including, but not limited to, all thermoplastics and thermosets. 

13. The term "ECM Plastic" means any plastic product treated with or incorporating 

an ECM additive. 

14. The term "ECM Additive" means the additive manufactured by ECM for 

inclusion in plastics products as a component of the finished plastic. 

15. The term "biodegradation" and any variation thereof means decomposition or 

degradation by or through the action of biological and biochemical agents. 

REQUESTS 

Request 1. Provide all documents that concern the article, "Biodegradability of 

conventional and bio-based plastics and natural fiber composites during composting, anaerobic 

digestion and long-term soil incubation," Eddie F. Gomez and Frederick C. Michel Jr., Polymer 

Degradation and Stability 98 (2013) 2583-2591, including, but not limited to all mail and emails 

and records concerning the date and time of FTC receipt related to, and documents referencing 

the article, "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. 

Reg uest 2. Provide all documents pertaining to all sources of payment, benefit( s ), 

publicity, and/or compensation to Dr. Ramani Narayan. 

Request 3. Provide all documents pertaining to all sources of payment, benefit( s ), 

publicity, and/or compensation to Eddie F. Gomez and Frederick C. Michel Jr, authors of the 

article, "Biodegradability of conventional and bio-based plastics and natural fiber composites 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
during composting, anaerobic digestion and long-term soil incubation" Polymer Degradation and 

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

Request 4. Provide all documents concerning the opinion that tests found in ECMFTC-000069-000241 and ECM-FTC-000497-509 are not supportive ofECM's claims. 

Request 5. Provide all documents that support the opinion that free chloride is not an 

adequate measurement of biodegradation in a test modeled after ASTM D 5511 and/or D5526 

that involves polyvinyl chloride (PVC) plastics. 

Request 6. Provide all documents that concern the opinion that carbon-14 testing is an 

available and acceptable method to measure whether a plastic infused with an additive is 

biodegradable in an anaerobic environment. 

Request 7. Provide all documents that concern the opinion that existing testing 

laboratories are capable of carbon-14 testing for ECM products specifically. 

Request 8. Provide all documents concerning all testing methods that are "competent 

and reliable scientific evidence" of biodegradable plastic claims. 

Request 9. Provide all documents, including, but not limited to all correspondence, 

phone logs, notes, meeting minutes, agendas, and presentations, and evaluations that make 

reference to, involve, and/or concern the following: 

• O.W.S. 

• Any employee, officer, or representative of the Biodegradable Products Institute 

("BPI") 

• Dr. Ramani Narayan 

• APCO Insight 

• The American Chemistry Council 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
• Eden Research Laboratory 

• Northeast Laboratories, Inc. 

• The University ofNew Mexico 

• Ohio State University 

• Michigan State University 

Request 10. Provide all documents and correspondence with the Environmental 

Protection Agency concerning the Revised Green Guides, biodegradable claims, bioreactors, and 

modem solid waste landfills. 

Request 11. Provide all documents concerning Revised Green Guides Section 260.8 

(16 C.F.R. 260.8), including, but not limited to those identifying all FTC personnel involved 

and/or participated in its revision, and those describing each individual's involvement and/or 

participation; all articles, journals, and other sources reviewed, considered, and/or used in any 

manner; and documents containing the names and contact information of all non-FTC personnel 

that were contacted, consulted with, and/or contributed to revisions of Section 260.8. 

Request 12. Provide all documents and correspondence concerning the FTC's 

investigation of ECM' s marketing claims, including, but not limited to the circumstances of how 

and when FTC first learned ofECM and its claims; correspondence with any non-FTC personnel 

about ECM; and internal correspondence of FTC personnel concerning ECM. 

Request 13. All documents and correspondence among any FTC employees 

concerning any proposed consent order for ECM ever contemplated by the FTC. 

Request 14. All documents concerning FTC's definition of the term "end- use 

consumer(s)" as used by the FTC in its adjudicative action against ECM, including, but not 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
limited to Complaint Counsel's use of the term at the Initial Pre hearing Conference in this matter 

on November 21,2013. 

Request 15. All documents concerning and/or supportive of the FTC's claim in its 

Complaint that ECM provided the "means and instrumentalities" to its customers and 

independent distributors for the commission of deceptive acts or practices. 

Request 16. Provide all documents concerning all tests and methods that, according to 

the FTC, form a reasonable basis in support of a claim that plastic products are biodegradable in 

municipal solid waste landfills or landfills generally. 

Request 17. Provide all documents concerning American Plastic Manufacturing, Inc .. 

Request 18. Provide all documents supporting FTC's allegation that ECM provided its 

customers and independent distributors with the "means and instrumentalities for the 

commission of deceptive acts or practices." 

Request 19. Provide all documents supportive of the allegation that the claim "The 

plastic products made with our additives will break down in approximately 9 months to 5 years 

in nearly all landfills or wherever else they may end up" was material to ECM customers' 

purchase ofECM's additive. 

Request 20. Provide all documents supportive of the allegation that the claim "The 

plastic products made with our additives will break down in approximately 9 months to 5 years 

in nearly all landfills or wherever else they may end up" was material to end-use consumers' 

purchase of ECM Plastics. 

Request 21. Provide all documents supportive of the allegation that landfills "do not 

present conditions that would allow ECM plastics to completely break down and decompose into 

elements found in nature within a reasonable short period of time." 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 

CERTIFICATE OF SERVICE 

I hereby certify that on February 28, 2014, I caused a true and correct copy of the paper 

original of the foregoing RESPONDENT'S SECOND SET OF REQUESTS FOR 

PRODUCTION OF DOCUMENTS to be served as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov 

Jonathan Cohen 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Email: jcohen2((/)ftc.gov 

Elisa Jillson 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

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

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

Commission's Rules. 

Is/ Jonathan W. Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

Email: jemord((/)emord.com 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-E 
PUBLIC DOCUMENT 

RESPONDENT 

EXHIBIT 

RX-F-1 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
VIA UPS 

Frederick C Michel Jr. 

Ohio State University 

207 Hayden Hall 

1680 Madison A venue 

Wooster, Ohio 44691 

February 28, 2014 

A Professional Corporation 

W.ASIDNGTON I VIRGINIA I PHOENIX 

11808 WOLF RUN LANE 

CLIFTON, VA 20124 

3210 S. GILBERT ROAD 

SUITE4 

CHANDLER, AZ 85286 

(602) 388-88991 FAX (602) 393-4361 

1050SEVENTEENTH STREET, N.W. 

SUITE600 

w AStJINGTON, D.C. 20036 

(202) 466-69371 FAX (202) 466-6938 

Lou F. Caputo, Esq. 

602.388.8901 

lcaputo@emord.com 

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

Dear Mr. Michel: 

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

Respondent ECM BioFilms, Inc.'s subpoena duces tecum. This subpoena requests the 

production of 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 March 17, 2014. We welcome you 

to contact us with questions. 

Sincerely, 

&:w~ Peter A. Arhangelsky 

Lou F. Caputo 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
SUBPOENA.DUCES TECUM · 

ProVIded by.the ~ry Of the Federal Trade CommiSsion, and 

Issued Pursuan~ to Comm~ion Rule 3~b), 16 C.F.R. § 3.34(b)(2010) 

1~ 1'0 

Frederick C Michel Jr. 

Ohio State University 

207 Hayden Hall 

·1680 Madison Avenue 

Wooster, ·Ohio 44691 

2. FROM 

UNITED STATES. 0~ AMERICA 

FEDERAL TRADE COMMISSION 

Thls subpcMma, ~t,~ires you to produce and permit inSpection ar\4 C9.PYins of designated books. doc;uments (as defi'""' jn 

R~ 3.34(b)); or ~Jlle things, at the date and time specified in Item 5, and at the ~of~ fisted ~ Jt~m 9, in · 

th8 Proceeding ~in1tem 6. · . . · 

3. PlACE OF~ · 4. MATERIAL \W.LBE ~TO' 

Emord & Associates, P.C. Peter Arhangelsky 

3210 S. Gilbert Road, Suite 4 ..... s._DA_TE_AN_D_TIME_._OF_PR-.-ODUCT10N--------.,..-,--

. Chandler, AZ: 85286 

March 17, 2014, 5:00 PM EST 

·e. ·SUBJecT OF PROCEEDING 

In 'the matter of ECM BioFilms, Inc., Docket No. 9358 

:7; 'MATERIAL. TO BE PRODUceD·. . . . 

See Attached Schedule A for description of all documents and materials. 

a.' AOMW4STRA11VE 1.AW .llbGE 

Chie.f Administrative Law Judge 

D. Michael Chappell 

Federal Ts:a<l~ Comrrissi90 . W&shingtoo, D.C. 200.00.· 

OATE SIGNED .. 

2/28/14:. 

. 9. COUNSEL AND PARTY ISSUING SUBPOENA 

Jonathan W. Emord, Peter Arhangelsky, Lou 

Caputo 

Emord & Associates, P.C. for Respondent 

. ECM BioFilms, Inc . . 

Gei'IERAL INSTRUCTIONS 

APPEARANCE 

Tl?e delivery of this sUbpoena to.)'Ouby &rlY ~ 

. ~by tt-Commia8!on's·R• of Pradice Is 

· le9al service and !~laY subjeCt you· to a pen8lty . 

imposed by la~ for failure to~ . · · 

MOTION TO'UMIT OR QUASH 

1beCommisslon'a ~ otPiaCtice·requh that q 

. motioil to.fimit Or quash this sUbpoena muat c:omPJy with 

COritmission RUle 3.34(o). 16 C.F.R § 3.34(e), arid in 

. ~:muSt be filectWithin the earfier.of 10 !i&YJ after 

. or the. tin:ae for cOmP&anee. Tfut·orJsinal and tan 

copies:otth9·p8titiO,n must be flied be!Ore·ttie ·~Law~ and·with the Seaet8ry of the 

Commission'. a~by an affidavit Qf ~ce' of 

1hi! doc;uirient upo;n c:qunsel.Dsleclir) ttem fj, and UDOR. all 

~ ;P,~~rtieaP~ by tile~ of P-raCtice. • 

Flc.Form70;e (MV. 1JW)' . . 

----- ·--

TRAVEL EXPENSEs·. 

The CCIC'IIfl'lis6ion's Rutes of PraCtice ~that. fees and 

mileage be. paij by 1he party that~ your appearanCe. . 

You shQtdd present your claim to ~listed in.ltem 9 fc!r 

payment If you are pe~ or temporanly living 

somewhele other than the ~~ on this aubj:ioena and. it 

would teqUile exoesaive travel ror yoU. tO~. you must get 

prior approval from c:oUnsef.ll$fed iii Item 9. 

A copy of the~~ of Practioe i$ available 

onlne atbttp:llbjt 1¥1FICBulmmtf@djM: Papet coPies are" 

availtible upon request. 

This 81lbpoena d(!eS not·reqUi,& appR,v.J tit oua·uncrer 

the P~ ~c:tion Act of 1980. · · 

Resp. Mot. to Compel and For Sanctions 

. Exh. RX-F-1 

' · , · 
SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

FREDERICK C MICHEL JR. 

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. 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 

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. 

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

initial response or otherwise waived. 

Resp. Mot to Compel and For Sanctions 

Exh. RX-F-1 
I. 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 

§3.3l(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. 

J. 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) ofthis section 

authorizes the issuance of subpoenas except in accordance with 

§§3.3l(c)(2) and 3.36. 

K. 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. 

L. If ony requested moterial is withheld based on a c-laim 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 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 

·-- -· -- --- --- ----------
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, 

correspondence 1

, 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 conceming2 ECM BioFilms, Inc. 

2. All correspondence between you and ECM BioFilms, Inc. 

3. All documents sent or received by you making reference to ECM BioFilms, 

Robert Sinclair, or ECM BioFilms Master Batch Pellets. 

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. 

2 The term "concerning" is intended, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining, or about the documents 

subject to any and all individual requests in this subpoena. 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
4. All documents concerning any test or report (including any and all notes and raw 

data) performed or written about a product or substance containing any product ofECM 

BioFilms, Inc., including "ECM Masterbatch Pellets." 

5. All documents concerning the article, Gomez, 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. 

6. All drafts and notes concerning the article, Gomez, 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. 

7. All documents concerning the involvement of any and all individuals with the 

article, Gomez, 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, and/or the tests and 

procedures described in such article. 

8. All documents concerning the actual tests and procedures (including any and all 

notes, drafts, protocols, identity and sources of the ECM additives received and used, and all raw 

data) described in "Gomez, 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. 

9. Reserve samples of all plastics allegedly containing the ECM additive that are 

referenced in the article, "Gomez, EF, Michel Jr., FC. "Biodegradability of conventional and bioResp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
based plastics and natural fiber composites during composting, anaerobic digestion and longterm soil incubation" Polymer Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

10. All documents specifically concerning all funding and sources of funding for the 

article, Gomez, 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. 

11. All documents and correspondence concerning Ohio State University's 

knowledge and/or approval of the article, Gomez, 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. 

12. All documents concerning any presentations, official discussions, lectures, 

interviews and/or publications in which the article Gomez, 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 was discussed. 

13. All documents concerning any other test, article, report, and/or project involving 

all versions of ASTM International standard D5511. 

14. All correspondence between you and Eddie F. Gomez concerning biodegradable 

products; biodegradable plastic products; compostable products; compostable plastic products; 

ECM BioFilms; ECM additives and/or plastic products allegedly containing ECM additives; Dr. 

Ramani Narayan; all versions of ASTM D5511, D5526, D5338, D6400; and/or Biodegradable 

Products Institute ("BPI"). 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
15. All documents concerning Dr. Ramani Narayan. 

16. All correspondence between you and Dr. Ramani Narayan. 

17. All documents concerning the BPI. 

18. All correspondence between you and the BPI. 

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

ASTM International. 

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

officer of the United States Federal Trade Commission. 

21. All documents concerning your education, training, and experience, including a 

list of all current and pending articles and written works that you have authored or co-authored. 

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 documents 3

, 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 Ohio State University who have knowledge 

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

who can testify to such matters. 

3 "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested" section. 

~---ro--~~------~- -~ ----~-------,-.--------------~-------------~~--

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
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, 

Is/ Jonathan W Emard 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202-466-6937 

Fx: 202-466-6938 

Em: jemord(ci{emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 

--~-- -~-----·------~-
UNITED STATES OF Ai\fERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMJNISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31(d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3 l(d). Pursuant to Commission Rule 3.3 l(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

Date: October 22,2013 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defmed. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification nuinber, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 

Resp. Mot. to Compel and Fqr Sanctions 

Exh. RX-F-1 
6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm( s ), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commissio_n, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 

-- ·~. -------

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereund~r. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-rompliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability of Rule 4.I l(e) of the Commission's 

Rules of Practice, 16 CFR 4.11 (e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

4 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-1 
RESPONDENT 

EXHIBIT 

RX-F-2 

Resp. Mot. to Compel and For Sanctions 

Exh. RX-F-2 

-,.---------·-·-----------------~-----------·------------c-~ ----
From: 

To: 

Cc: 

Subject: 

Date: 

Attachments: 

Counsel, 

Lou Caputo 

kiohnson3@ftc.gov 

ejillson@ftc.gov; jcohen2@ftc.gov; Jonathan Emord; Peter Arhangelskv 

Third-Party Subpoenas Duces Tecum 

Friday, February 28, 2014 3:30:00 PM 

Subpoena CEcoSmartl.pdf 

Subpoena (Eiseyjerl.pdf 

Supp. Subpoena (Narayanl.pdf 

Subpoena (Gome<;).pdf 

Subpoena (Mjchel).odf 

Subpoena (Aimenar).pdf 

Per the AU's Scheduling Order, please find the attached subpoenas duces tecum that were sent 

earlier today to the respective subjects. 

Best, 

Lou Caputo I EMORD & AssociATEs, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 

388-8901 I Facsimile: (602) 393-4361 1 www.emord.com 

.t::I.QII.QE.: 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 and For Sanctions 

Exh. RX-F-2 
RESPONDENT 

EXHIBIT 

RX-G 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-G 

CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER 
REDACTED 

-- -· -.,.-- --- ---,----·------ ·-----,.,---
REDACTED 

--·-- ---------~----~--------------:,..------------------~~-----~------:r'---------------~------------·----;T""'"-------------------------~-----------~-~ ~ 
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i 

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I 

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I 

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• • , . . l --r."'- -- -
RESPONDENT 

EXHIBIT 

RX-H 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

COMPLAINT COUNSEL'S RESPONSE TO 

RESPONDENT ECM BIOFILMS, INC.'S FIRST SET OF 

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS 

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

Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent ECM Biofilms, Inc.'s ("ECM's") First Set of Requests for Production 

of Documents and Things. 

GENERAL OBJECTIONS 

1. Complaint Counsel reserves the right to assert additional objections to production 

of information or documents as appropriate and to supplement these objections and responses. 

As to each request where Complaint Counsel has stated that it will produce or make responsive 

documents available for inspection, such a statement does not imply or represent that responsive 

documents are known to exist or do, in fact, exist. Complaint Counsel objects to the Document 

Requests to the extent they seek information that is not relevant to the subject matter of the 

litigation and/or not reasonably calculated to lead to the discovery of relevant information. 

2. Complaint Counsel's willingness to provide information or documents 

notwithstanding the objectionable nature of the Document Request shall not be construed as (a) 

an acknowledgment or admission that the material is relevant; (b) a waiver of the General 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
Objections or the Objections asserted in response to specific document requests; or (c) an 

agreement that requests for similar information will be treated in a similar manner. 

3. Complaint Counsel objects to each document request to the extent that it calls for 

information or the production of any document that is protected from disclosure by the attorneyclient privilege, the attorney work-product privilege, the deliberative process privilege, the law 

enforcement privilege, the investigative privilege, the government informant privilege, the nontestifying expert privilege, the joint prosecution privilege, the common interest doctrine, that is 

exempt from disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is 

protected from disclosure by the privilege for information given to the FTC on a Pledge of 

Confidentiality, that is protected from disclosure under principles of financial privacy, that is 

subject to a protective order from another litigation, or that is subject to any other applicable 

legal protection or privilege. The inadvertent production of any privileged documents shall not 

be deemed a waiver of any applicable privilege with respect to that document or any other 

document or information. 

4. Complaint Counsel objects to each document request to the extent that it calls for 

materials generated and transmitted between Complaint Counsel and non-testifying Federal 

Trade Commission employees, as outside the scope of discovery pursuant to Rule 3.31 ( c )(2). 

5. Complaint Counsel objects to each document request to the extent it seeks 

information that is not relevant to the subject matter of the litigation and/or not reasonably 

calculated to lead to the discovery of information relevant to the allegations of the complaint, to 

the proposed relief, or to Respondent's defenses. 

6. Complaint Counsel objects to each document request to the extent that it is overly 

broad, unduly burdensome, vague, and ambiguous. 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
7. Complaint Counsel objects to each document request to the extent that it seeks 

documents that are not in the possession, custody, or control of Complaint Counsel. 

8. Complaint Counsel will not produce documents responsive to this request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or litigation in this matter. 

9. Complaint Counsel will not produce documents responsive to this request that 

have been provided to Respondent previously. 

10. This response addresses only documents collected or reviewed in the course ofthe 

investigation and prosecution of this case and that are in the possession, custody or control of the 

FTC Bureau of Consumer Protection. See FTC Rule 3.31 ( c )(2). Complaint Counsel objects to 

the Requests to the extent they seek documents outside this scope, and such documents will not 

be produced. 

11. Each ofthe foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving any of such objections, 

Complaint Counsel responds as follows: 

OBJECTIONS AND RESPONSES TO REQUESTS 

Request for Production 1: Provide all documents that concern whether plastics in 

general and ECM Plastics in particular will break down and decompose into elements found in 

nature after customary disposal or in a landfill. 

Response: Complaint Counsel objects to Request for Production 1 on the grounds that a 

request for documents concerning plastics in general is overly broad, vague, and ambiguous. 

Subject to and without waiving the foregoing objections, Complaint Counsel will produce 

responsive, non-privileged documents. 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
Request for Production 2: Provide all documents, whether prepared by or for the 

Commission or any other entity, concerning consumer perception, comprehension, or recall 

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

tests, recall tests, audience reaction tests, and communication tests) of plastics biodegradability; 

biodegradability in general; landfill composition; or conditions of customary waste disposal. 

Response: Complaint Counsel objects to Request for Production 2 on the grounds that it 

is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing objections, 

Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 3: Provide all documents that support or call into question your 

conclusion that ECM's biodegradable claims for degradation are false. 

Response: Complaint Counsel objects to Request for Production 3 on the grounds that 

the request is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 4: Provide all documents that support or call into question your 

conclusion that consumers likely interpret unqualified degradable claims to mean that the entire 

product or package will completely decompose into elements found in nature within one year 

after customary disposal. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
Request for Production 5: Provide all documents relating to your contention that 

express or implied representations made in or implied by ECM BioFilm's written advertising or 

promotional materials are false or misleading. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 6: Provide all correspondence between FTC and ASTM and 

ASTM present and past members, officers, directors, or agents. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 7: Provide all documents pertaining to the ASTM standards 

which concern plastics biodegradability, or concern ASTM policies, membership, or revisions to 

standards. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 8: Provide all documents that relate to your contention that 

end-consumers (as opposed to ECM's trade customers) view, understand, or rely on ECM's 

written advertising materials. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 

--------f'l--------~------~-~---------··---.----~----~---------~-----------------------,----------------~--
Request for Production 9: Provide all documents relating to any investigation 

conducted by you or on your behalf relating to any advertising claims or representations 

concerning the ECM MasterBatch Pellets, or any other ECM plastics additive. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 10: Produce all documents concerning your contention that 

landfills are generally anaerobic environments that lack oxygen and that restrict the amount of 

liquid infiltration or moisture content. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 11: Provide all documents concerning plastics chemistry, 

formation, polymerization, formulation, mineralization, enzymatic degradation, or 

depolymerization in biodegradable and non-biodegradable polymers. 

Response: Complaint Counsel objects to Request for Production 11 on the grounds that 

it is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 12: Provide all documents relating to your contention that 

ECM' s tests were not designed to support its claims, and that the data from ECM' s testing is 

invalid or cannot support reliable conclusions. 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 13: Produce all documents concerning the period of time under 

which conventional plastics generally biodegrade, including documents supporting your 

contention that plastics will normally require hundreds of thousands of years to biodegrade. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 14: Produce all documents concerning your definition of 

"competent and reliable" scientific evidence as that definition concerns biodegradation claims 

for plastics in general and ECM's express and/or implied claims challenged by the FTC. 

Response: Complaint Counsel objects to Request for Production 14 on the grounds that 

it is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 15: Provide all documents relating to any advertisement or 

promotional material for the ECM MasterBatch pellets, other than documents produced by 

Respondents in pre-complaint disclosures or discovery. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Resp. Mot to Compel and for Sanctions 

Exh. RH-H 
Request for Production 16: Produce all documents identified in any answer to an 

Interrogatory propounded by ECM or on which you rely in answering any Interrogatory 

propounded by ECM. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Dated: January 2, 2014 

8 

2 2) 326-2185 

( 02) 326-2551 

(202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mailstop M-8102B 

Washington, DC 20580 

Resp. Mot to Compel and for Sanctions 

EXh. RH·H 
CERTIFICATE OF SERVICE 

I hereby certify that on January 2, 2014, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel's Response to Respondent ECM Biofilms, Inc. ·s 

First Set of Requests for Production of Documents or Things to be· served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: Jemord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

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

document that is available for review by the parties and the adjudicator. 

9 

erine Johnson 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 

Rasp. Motto Compel and for Sanctions 

Exh. RH-H 
RESPONDENT 

EXHIBIT 

RX-I-1 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

-·----~~------ ~~~-----~--·-

Resp. Mot. to Compel and for Sanctions 

Exh. RX-1-1 

CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER 
REDACTED 
RESPONDENT 

EXHIBIT 

RX-I-2 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Mot to Compel and For Sanctions 

Exh. RX-1-2 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 
REDACTED 
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RESPONDENT 

EXHIBIT 

RX-J .. 

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PROTECTIVE ORDER 
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RESPONDENT 

EXHIBIT 

RX-K 

CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-K 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 

~--~----
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RESPONDENT 

EXHIBIT 

RX-L 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-L 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

COMPLAINT COUNSEL'S SUPPLEMENTAL INITIAL DISCLOSURES 

Under Commission Rule of Practice§ 3.31(b) and (e), Complaint Counsel supplements 

its Initial Disclosures. The information disclosed herein is based upon information reasonably 

available to Complaint Counsel. Without waiving any privileges or prejudicing the ability to 

supplement these Supplemental Initial Disclosures if additional information becomes available, 

Complaint Counsel makes the following supplemental disclosures: 

I. Individuals and Entities Likely To Have Discoverable Information 

In addition to the individuals and entities identified in Complaint Counsel's original 

Initial Disclosures, we have listed in Supplemental Appendices C and D, individuals and entities 

that are likely to have discoverable information relevant to the allegations asserted in the 

Complaint, the proposed relief, or Respondent's defenses. 1 When available, Complaint Counsel 

has set forth each individual's or entity's name and, if known, address and telephone number. 2 

1 Documents received from ECM Biofilms, Inc. ("ECM") in response to Complaint Counsel's 

requests may include other individuals likely to have discoverable information relevant to the 

allegations asserted in the Complaint, the proposed relief, or Respondent's defenses. 

2 Any contact with Federal Trade Commission ("Commission") employees must be made 

through Complaint Counsel. 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-L 
II. Documents and Electronically Stored Information 

Attached are copies of additional documents and electronically stored information in the 

Bureau of Consumer Protection's possession, custody, or control that are relevant to the 

allegations asserted in the Complaint, the proposed relief, or Respondent's defenses. Complaint 

Counsel is in the process of searching for additional relevant documents, except that Complaint 

Counsel will not provide any documents, materials, or electronically stored information subject 

to the limitations in § 3.31(c)(2), privileged as defined in § 3.31(c)(4), pertaining to hearing 

preparation as defined in § 3.31 (c)( 5), or pertaining to experts as defined in § 3.31 A. To the 

extent that such documents are produced, it is without waiver of any protections or privileges. 

Dated: March 17, 2014 Respectfully submitted, 

Is/ Katherine Johnson 

Katherine Johnson (202) 326-2185 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M -81 02B 

Washington, DC 20580 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-L 
CERTIFICATE OF SERVICE 

I hereby certify that on March 18, 2014, I caused a true and correct copy ofthe foregoing 

Complaint Counsel's Supplemental Initial Disclosures to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11 808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

~----------------~· 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Is/ Katherine Johnson 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 

Resp. Mot. to Compel and for Sanctions 

Exh. RX·l 
------r·-------

Supplemental Appendix C 

Individuals or Entities Associated with Scientific Testing 

Name and Title Contact Information 

Ohio State Through counsel 

University 

Frederick Michel Contact through counsel 

Eddie F. Gomez Contact through counsel 

Counsel (if known) 

Jan Alan Neiger 

Assistant Vice President and 

Associate General Counsel 

The Ohio State University 

Office of Legal Affairs 

1590 North High Street, 

Suite 500 

Columbus, Ohio 43201 

Phone:614-292-0611/FPCX: 

614-292-8699 

E-Mail: Neiger.4@osu.edu 

Jan Alan Neiger 

Assistant Vice President and 

Associate General Counsel 

The Ohio State University 

Office of Legal Affairs 

1590 North High Street, 

Suite 500 

Columbus, Ohio 43201 

Phone:614-292-0611/FPCX: 

614-292-8699 

E-Mail: Neiger.4@osu.edu 

Jan Alan Neiger 

Assistant Vice President and 

Associate General Counsel 

The Ohio State University 

Office of Legal Affairs 

1590 North High Street, 

Suite 500 

Columbus, Ohio 43201 

Phone:614-292-0611/FPCX: 

614-292-8699 

E-Mail: Neiger.4@osu.edu 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-L 
Name and Title 

Kathleen Pessolano 

Zachary Hunter 

Matthew Wilshire, 

Attorney 

David Hendrickson, 

Investigator 

Supplemental Appendix D 

Current and Former FTC Employees 

Contact Information 

Unknown 

Unknown 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Mailstop M-8102B 

Washington DC, 20580 

Tel: contact through Complaint 

Counsel 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Mailstop M-8102B 

Washington DC, 20580 

Tel: contact through Complaint 

Counsel 

Counsel (if known) 

Complaint Counsel 

Complaint Counsel 

Complaint Counsel 

Complaint Counsel 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-L 
RESPONDENT 

-~- ·-----------

EXHIBIT 

RX-M 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-M 

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

DECLARATION OF LOU CAPUTO IN SUPPORT OF RESPONDENT ECM'S 

MOTION TO COMPEL AND FOR SANCTIONS 

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

true and correct: 

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

knowledge of its contents and in further support of Respondent's Motion for a Protective Order. 

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

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

above-captioned case. 

3. Exhibit RX-F-1 hereto is a true and correct copy of a subpoena duces tecum sent 

to Dr. Frederick Michel on February 28,2014. 

4. Exhibit RX-F-2 hereto is a true and correct copy of an email sent to Complaint 

Counsel and Dr. Michel on February 28,2014. 

1 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-M 
Executed this 19th day of March 2014 in Chandler, Arizona. 

2 

Resp. Mot. to Compel and for Sanctions 

Exh. RX-M