PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

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Docket No. 9358 

PUBLIC DOCUMENT 

COMPLAINT COUNSEL'S REPLY TO RESPONDENT'S OPPOSITION TO 

COMPLAINT COUNSEL'S MOTION FOR LEAVE 

TO TAKE THE DEPOSITION OF ALAN JOHNSON 

Pursuant to Rule 3.22(d), Complaint Counsel respectfully files this reply to Respondent's 

opposition to our Motion for Leave to Take the Deposition of Alan Johnson. ECM's opposition 

contains two key factual inaccuracies. First, it mischaracterizes the testimony of the corporate 

designee ofNortheast Laboratories, Inc. ("Northeast"). Second, it misstates Complaint 

Counsel's response to her testimony. 

Contrary to ECM's disparaging description of her as a "lab technician,"1 Northeast's 

corporate designee, Alyssa Ullman, is the Project Manager for Biodegradation Studies? And 

contrary to ECM's characterization of her as an "uninformed witness," Ms. Ullman testified that 

she was the "best person" to testify about each topic in Complaint Counsel's Rule 3.33(c)(l) 

deposition notice3 (whose topics included Northeast's biodegradation testing and testing 

procedures and protocols4

). Ms. Ullman prepared for her deposition by consulting Alan Johnson 

and Garrett Johnson, 5 the Northeast employees whom ECM itself had identified as potential 

1 Opp. at 7. 

2 RX-A at 5 (Tr. 13:24 - 14:1). 

3 RX-A at 8 (Tr. 129:23 - 130:2-5). 

4 RX-B at 6. 

5 RX-A at 4 (Tr. 8:6-13). 

07 10 2014
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witnesses. Ms. Ullman, Alan Johnson, and Garrett Johnson made the joint decision to put Ms. 

Ullman forward as the corporate designee for three specific reasons: (1) Ms. Ullman deals with 

all ofNortheast's biodegradation testing clients; (2) she completes every client's biodegradation 

testing report; and (3) she has been involved in Northeast's biodegradation testing longer than 

any other Northeast employee.

6 

Based on this testimony, Complaint Counsel reasonably believed that Ms. Ullman spoke 

on behalf ofNortheast. 7 Complaint Counsel's request to depose Mr. Johnson is simply an effort 

to develop a complete record that makes clear where an individual Northeast employee disagrees 

with the testimony of the laboratory itself. 8 Bringing any discrepancies to light during a 

deposition before trial will greatly facilitate efficient exploration of disputed issues at trial. 

6 RX-A at 8 (129:23 - 130:2-5). 

7 It is not reasonable (or desirable from any party's perspective) to expect Complaint 

Counsel to have deposed every person or entity that ECM named on its preliminary witness 

list-which listed 106 persons, entities, or categories of persons or entities. 

8 ECM argues that Complaint Counsel should have taken Mr. Johnson's deposition 

earlier or sought to exclude his testimony by stipulation. Opp. at 7-8. Given that we had 

deposed Northeast's corporate designee already and are not obligated to depose the 100+ persons 

or entities on ECM's preliminary witness list, we had no obligation to depose Mr. Johnson 

earlier (or seek to exclude his testimony) before it became apparent that ECM would call him 

live at trial. 
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CONCLUSION 

For these reasons, we respectfully ask the Court to grant Complaint Counsel's motion. 

Dated: July 10, 2014 Resp~ 

Katherine Johnson (kj ohnson3 @ftc. gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov) 

Arturo Decastro (adecastro@ftc.gov 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; -3001 

Fax: 202-326-2551 
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CERTIFICATE OF SERVICE 

I hereby certify that on July 10,2014, I caused a true and correct copy ofthe foregoing to 

be served as follows: 

One electronic copy to the Office of the Secretary, and one copy through the FTC's e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic copy and one hard 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 the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Eric A werbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: EA werbuch@emord.com 

Date: July 10,2014 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Katherine Johnsin (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson ( ej illson@ftc. gov) 

Arturo Decastro (adecastro@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001; -2747 

Fax: 202-326-2551