ORtGINAL 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

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DOCKET NO. 9358 

ORDER ON RESPONDENT'S MOTION TO COMPEL 

I. 

PUBLIC 

MAR 2 8 2014 

S6Ci'c;I,:Z.O SEcflETARY 

On March 21, 2014, Respondent ECM Biofilms, Inc. ("Respondent" or "ECM") filed a 

Motion to Compel and to Sanction Complaint Counsel for Violation of Discovery Rules, and 

accompanying Memorandum in Support thereof (collectively, "Motion"). 

The Motion arises in connection with Federal Trade Commission ("FTC") Complaint 

Counsel's supplemental document production on February 19, 2014 of a published article titled, 

"Biodegradability of Conventional and Bio-Based Plastics and Natural Fiber Composites During 

Composting, Anaerobic Digestion and Long-Term Soil Incubation," by Eddie F. Gomez and 

Frederick C. Michel, Jr., who are associated with Ohio State Agricultural Research and 

Development Center (the "Ohio State Article" or "Article"), and Complaint Counsel's 

subsequent supplemental document production, on March 18, 2014, of a 2012 draft of the 

Article, and related correspondence from late 2012 and early 2013 between FTC attorneys in the 

Bureau of Consumer Protection, Division ofEnforcement and Mr. Michel, co-author ofthe 

Article. Respondent argues that Complaint Counsel's failure to produce the foregoing materials 

in response to Respondent's December 3, 2013 Request for Production of Documents was due to 

Complaint Counsel's failure to perform a diligent search for responsive documents and that, 

therefore, Complaint Counsel should be compelled to perform such a search at this time and 

thereafter confirm to the Administrative Law Judge that it has completed production of all 

responsive documents. 

On March 27, 2014, Complaint Counsel filed an "Opposition to Respondent's Second 

and Third Motions to Exclude the Ohio State Study." ("Opposition"). Complaint Counsel has 

not filed an opposition to the Motion to Compel, and its consolidated Opposition does not 

directly address the relief requested by Respondent's Motion to Compel, although Complaint 
Counsel asserts that its late disclosures were inadvertent. Rather, Complaint Counsel's 

Opposition focuses on Respondent's motions for sanctions against Complaint Counsel, 

particularly Respondent's request to preclude Complaint Counsel from introducing into evidence 

or otherwise relying on the Article for the hearing in this matter. 

As set forth below, Respondent's Motion to Compel is GRANTED IN PART and 

DENIED IN PART. 1 

II. 

FTC Rule 3.38(a) states in pertinent part: 

A party may apply by motion to the Administrative Law Judge for an order compelling 

disclosure or discovery, including a determination of the sufficiency of the answers or 

objections with respect to ... a production of documents ... under§ 3.37. 

16 C.P.R.§ 3.38(a). 

Based on the language of Rule 3.38(a), Respondent's requested relief is, arguably, 

outside the scope of a motion to compel. Respondent's motion does not seek to compel 

additional document production by Complaint Counsel, or request a determination that 

Complaint Counsel's document productions to date are, in fact, insufficient; rather, Respondent 

seeks to require Complaint Counsel to again search for responsive documents, and thereafter 

confirm that its production is complete. 

In any event, based on the record presented in the Motion and Opposition, including the 

exhibits attached thereto, it cannot be concluded, as a fact, that Complaint Counsel's production 

of documents under Respondent's First Request for Production of Documents is presently 

complete or incomplete. However, to the extent that Complaint Counsel has not yet conducted a 

diligent search for additional responsive documents, it shall do so and produce any additional 

responsive documents. 

III. 

For all the foregoing reasons, Respondent's Motion to Compel is GRANTED IN PART 

and DENIED IN PART, and it is hereby ORDERED that: to the extent that Complaint Counsel 

has not yet conducted a diligent search for documents responsive to Respondent's December 3, 

2013 First Request for Production of Documents, it shall do so and produce any additional 

responsive documents no later than April3, 2014; absent production of additional responsive 

1 FTC Rule 3.38(a), which authorizes motions to compel, requires issuance of an order "within 3 business days" of 

the response to the motion, as opposed to "within 14 days," as provided for all other motions under Rule 3.22(e). 16 

C.F.R. §§ 3.22(e), 3.38(a). Accordingly, it is necessary to decide Respondent's Motion to Compel on an expedited 

basis and then decide Respondent's accompanying Motion for Sanctions pursuant to the time limits in Rule 3.22(e). 

Thus, this Order regarding the Motion to Compel is issued today, with the Order regarding the Motion for Sanctions 

to follow. 

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documents by April3, 2014, Complaint Counsel's document production under Respondent's 

First Request for Production of Documents will be deemed complete. In addition, if no 

additional responsive documents are produced by April3, 2014, Complaint Counsel shall inform 

Respondent in writing, no later than April 3, 2014, that it has completed its search and that no 

further responsive documents exist. Complaint Counsel may not introduce into evidence or 

otherwise rely upon, for any purpose, any document that has not been produced to Respondent in 

compliance with this Order. 

ORDERED: 

D. Michael chaj)ei 

Chief Administrative Law Judge 

Date: March 28,2014 

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