In the Matter of 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

ORIGINAL 

ECM BioFilms, Inc., 

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DOCKET NO. 9358 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

ORDER DENYING RESPONDENT'S MOTION TO COMPEL 

EXPERT WITNESSES' RESPONSES TO SUBPOENAS DUCES TECUM 

I. 

On May 20, 2014, Respondent ECM BioFilms, Inc. ("Respondent" or "ECM") filed a 

Motion to Compel designated expert witnesses for Federal Trade Commission ("FTC") 

Complaint Counsel to respond to Respondent's subpoenas duces tecum ("Motion"). Complaint 

Counsel filed its opposition on May 28, 2014 ("Opposition"). On May 30, 2014, Respondent 

filed a Motion for Leave to File a Reply and a Reply in Support of its Motion ("Reply"). 

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Respondent's Motion for Leave to File a Reply is GRANTED. Having considered the 

Motion, the Opposition, and the Reply, the Motion is DENIED, as explained below. 

II. 

Respondent states that on April 7, 2014, it served subpoenas duces tecum on Complaint 

Counsel's designated expert witnesses, Drs. Stephen McCarthy, Thabet Tolaymet, and Shane 

Frederick (collectively, "Complaint Counsel's expetts") and that only one document has been 

produced in response to these subpoenas, the Curriculum Vitae of Dr. Tolaymet. Respondent 

asserts that the Commission Rules do not exempt testifying experts from discovery; that 

1 Respondent sent an email to the Office of Administrative Law Judges ("OALJ") indicating its intent to file a 

motion for leave to file a reply. Complaint Counsel then sent an email to the OALJ presenting arguments against 

Respondent's email notification of its intent to file a reply and stating that it reserves the right to move to strike 

Respondent's reply, to seek leave to file a supplemental submission, or both. Complaint Counsel subsequently sent 

an additional email indicating its intent to file its opposition to Respondent's motion for leave to file a reply. 

Because, as explained below, Respondent's Motion to Compel is DENIED, Complaint Counsel's email requests are 

not addressed. 
subpoenas are a proper mechanism for obtaining discovery from experts; and that evidence of an 

expert's bias, conflicts, and lack of independence, which the subpoenas seek, is directly relevant 

and discoverable. Respondent seeks to compel Complaint Counsel's experts to produce 

documents responsive to its subpoenas. 

Complaint Counsel argues that Respondent's subpoenas are defective for three reasons. 

First, the subpoenas are procedurally flawed because they were "issued" without the seal of the 

Secretary of the Federal Trade Commission. Second, according to Complaint Counsel, the 

demands exceed the scope of permissible expert discovery. And third, Complaint Counsel 

argues, the subpoenas request duplicative and irrelevant information and impose a substantial 

burden on Complaint Counsel's experts that outweighs the benefit to Respondent. 

III. 

The FTC Rule governing the issuance of discovery subpoenas states: "Counsel for a 

party may sign and issue a subpoena, on a form provided by the Secretary, commanding a person 

to produce ... documents .... " 16 C.F.R. § 3.34(b). Complaint Counsel, who accepted service 

on behalf of its experts, and thus physically received the original subpoenas in dispute, has 

represented that the subpoenas do not have the required raised official seal of the Office of the 

Secretary. Respondent, in its Reply, does not dispute that the subpoenas do not have the required 

official seal of the Office of the Secretary. Instead, Respondent asserts that as "[a]n out-of-state 

respondent, ECM has complied with Rule 3.34(b) to the letter when issuing its subpoenas duces 

tecum." Reply at 7. 

Although this may appear to be merely a formality, because the FTC Rules no longer 

require the Secretary to sign subpoenas,

2 the raised seal of the Office of the Secretary on 

subpoenas is the only remaining indication of authority that allows the subpoena recipient to 

distinguish an enforceable subpoena from an unofficial form simply copied from the FTC's 

website. By letter dated October 29, 2013, counsel for Respondent was advised by the Office of 

the Secretary of the requirement of obtaining the appropriate, official subpoena form from the 

Office of the Secretary ("the October 29, 2013 letter"). Specifically, the October 29, 2013 letter 

states: "In the event a party wishes to effect the issuance of a subpoena to a third party, pursuant 

to Rule 3.34(a) and (b), that party should complete the appropriate subpoena form and deliver 

such form to [an FTC employee with the Office of the Secretary] .... Upon receipt, the 

Document Processing Section will affix the Commission seal to the subpoenas so that they can 

be signed and issued, and the Section will notify you when they are ready to be picked up." 

Nothing in Rule 3.34 or the October 29, 2013 letter exempts an out-of-state respondent 

from obtaining official subpoena forms from the Office of the Secretary.3 A subpoena that is not 

2 Prior to the 2009 amendments to the Rules of Practice, FTC Rule 3.34(b) stated: ''The Secretary of the 

Commission, upon request of a party, shall issue a subpoena, signed but otherwise in blank, commanding a person to 

produce ... documents .. .. " 

3 Although it is not dispositive, it should be noted that Respondent has counsel located in Clifton, Virginia, a suburb 

of Washington, D.C. 

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valid, for any reason, will not be considered and can not be enforced. Respondent did not obtain 

the required official subpoenas. Therefore, Respondent did not comply with Rule 3 .34(b) and 

the sul?poenas underlying Respondent's motion are invalid. Because the underlying subpoenas 

are invalid, there is no bas1s for evaluatmg a motion for comphance. Accordingly, other 

arguments raised by the partieS need not, and will not, be addres5ed. 

!V. 

For the reasons Set forth above, Respondent's Motion is DENIED. This Order does not 

preclude Respondent from inquiring into mformahon germane to expert qualifications, 

knowledge, training, and experience, as well as informatwn germane to expert bias, conflicts of 

interest, or lack of independence, at the designated expert witnesses' depo!litions. 

ORDERED: 

D. Mtchael 

J::> ttt 

Chappell 

(Jihspfi .. 

· 

"----

Chief Administrative Law Judge 

Date: June 2, 2014 

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