Iv.

Because Respondent has not adequately demonstrated that the documents for which it
seeks in camera treatment meet the Commission’s strict standards, Respondent’s motion is
DENIED WITHOUT PREJUDICE. Respondent may file a renewed motion for in camera
treatment, by July 30, 2014. With respect to the exhibits for which Respondent continues to seek
in camera treatment, Respondent shall support its motion with an affidavit or declaration
showing that the documents it seeks to withhold from the public record meet the Commission’s
standards as detailed above. Respondent will not be required to redact confidential information
from individual exhibits and may seek in camera treatment for entire exhibits, other than for
deposition transcripts, provided such entire exhibits are of reasonable length. With respect to the
deposition transcripts, Respondent shall designate specific excerpts reflecting confidential
information. Complaint Counsel may file any opposition thereto by 1:00 p.m. on August 1,
2014.

ORDERED: > Nn A f eed
D. Michael Chappell 7

Chief Administrative Law Judge

Date: July 23, 2014


PUBLIC

UNITED STATES GF AMERICA
FEDERAL TRADE COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

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RECEIVED DOCUMENTS°S7,
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JUL 2 3 20%
DG 4

SECRETARY

In the Matter of

ECM BioFilms, Inc.,
a corporation, also d/b/a
Enviroplastics Intemational,
Respondent.

DOCKET NO. 9358

ORDER ON RESPONDENT’S MOTION FOR IN CAMERA TREATMENT
I.

Pursuant to Rule 3.45(b) of the Federal Trade Commission’s (“FTC”) Rules of Practice
and the Scheduling Order entered in this matter, on July 9, 2014, Respondent ECM BioFilms,
Inc. (“Respondent” or “ECM”) filed a motion for in camera treatment for materials that the
parties have listed on their exhibit lists as materials that might be introduced at trial in this
matter. FTC Complaint Counsel filed an Opposition on July 15, 2014. On July 16, 2014,
Respondent filed a Motion for Leave to File a Reply to Complaint Counsel’s Opposition to
Respondent’s Motion for Jn Camera Treatment of Proposed Trial Exhibits and its Proposed.
Reply. Complaint Counsel filed an opposition to the motion for leave on July 17, 2014,

Respondent’s Motion for Leave to File a Reply is GRANTED. For the reasons set forth
below, Respondent’s Motion for Jn Camera Treatment is DENIED WITHOUT PREJUDICE.

I.

Under Rule 3.45(b) of the Rules of Practice, the Administrative Law Judge may order
that material offered into evidence “be placed in camera only after finding that its public
disclosure will likely result in a clearly defined, serious injury to the person, partnership or
corporation requesting in camera treatment or after finding that the material constitutes sensitive
personal information.” 16 C.F.R. § 3.45(b). Applicants for in camera treatment must “make a
clear showing that the information concerned is sufficiently secret and sufficiently material to
their business that disclosure would result in serious competitive injury.” Jn re General Foods
Corp., 95 F.T.C. 352, 1980 FTC LEXIS 99, at *10 (Mar. 10, 1980). In Jn re Bristol-Myers Co.,
the Commission outlined six factors to be weighed when determining matenality and secrecy:
(1) the extent to which the information is known outside of the applicant’s business; (2) the
extent to which the information is known by employees and others involved in the applicant’s


business; (3) the extent of measures taken by the applicant to guard the secrecy of the
information; (4) the value of the information to the applicant and its competitors; (5) the amount
of effort or money expended by the applicant in developing the information; and (6) the ease or
difficulty with which the information could be properly acquired or duplicated by others. Jn re
Bristol-Myers Co., 90 F.T.C. 455, 1977 FTC LEXIS 25, at *5 (Nov. 11, 1977). Accord In re
Dura Lube Corp., 1999 FTC LEXIS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc.,
2000 FTC LEXIS 138 (Sept. 19, 2000).

The Federal Trade Commission recognizes the “substantial public interest in holding all
aspects of adjudicative proceedings, including the evidence adduced therein, open to all
interested persons.” In re H.P. Hood & Sons, Inc, 58 F.1.C. 1184, 1961 FTC LEXIS 368, at *5-
6 (March 4, 1961), A full and open record of the adjudicative proceedings promotes public
understanding of decisions at the Commission. Jn re Bristol-Myers Co., 1977 FTC LEXIS 25, at
*6. A full and open record also provides guidance to persons affected by its actions and helps to
deter potential violators of the laws the Commission enforces. In re Hood. 1961 FTC LEXIS
368, at *6-7. The burden of showing good cause for withholding documents from the public
record rests with the party requesting that documents be placed in camera, Id. at *10-11,

Nevertheless, the Commission has recognized that it may be appropriate to provide in
camera treatment for certain business records. In re Champion Spark Plug Co., 1982 FTC
LEXIS 85, at *2 (April 5, 1982); see Hood, 1961 FTC LEXIS 368, at *4-5; In re Kaiser
Aluminum & Chemical Corp., 103 F.T.C. 500, 500, 1984 FTC LEXIS 60 (May 25, 1984).
Where in camera treatment is granted for business records, such as business strategies,
marketing plans, pricing policies, or sales documents, it is typically provided for two to five
years. E.g., In re Union Oil Co. of Cal,, 2004 FTC LEXIS 223, at *2 (Nov 22, 2004); In re Int'l
Assoc. of Conference Interpreters, 1996 FTC LEXIS 298, at *13-14 {June 26, 1996), Champion
Spark Plug, 1982 FTC LEXIS 85 at *2 and 1982 FTC LEXIS 92, at *2 (March 4, 1982).

In order to sustain the burden for withholding documents from the public record, an
affidavit or declaration is required, demonstrating that a document is sufficiently secret and
sufficiently material to the applicant’s business that disclosure would result in serious
competitive injury. See In re North Texas Specialty Physicians, 2004 FTC LEXIS 109, at *3-4
(Apr. 23, 2004). To overcome the presumption that in camera treatment will not be granted for
information that is more than three years old, applicants seeking in camera treatment for such
documents must also demonstrate, by affidavit or declaration, that such material remains
competitively sensitive. In addition, to properly evaluate requests for in camera treatment,
applicants for in camera treatment must provide a copy of the documents for which they seek in
camera treatment to the Administrative Law Judge for review.

HL.

Respondent seeks in camera treatment for a narrow set of documents that the parties
intend to introduce at trial. Of the over 1,200 potential exhibits identified by the parties,
Respondent seeks in camera treatment for 37 documents that ECM asserts contain truly
confidential information, such as customer lists, financial information, personal information, and
business strategy. In support of its Motion, Respondent provides an Affidavit of Robert Sinclair,

2


President and CEO of ECM BioFilms, Inc. (“Sinclair Affidavit”).

Complaint Counsel opposes Respondent’s Motion on grounds that Respondent: failed to
meet and confer prior to filing the Motion; improperly attempted to assert the alleged
confidentiality interests of third parties; failed to adequately support its requests, and improperly
sought in camera treatment for entire documents, rather than selected portions.

In order to encourage discussion between the parties and minimize unnecessary motion
practice, Additional Provision 4 of the Scheduling Order issued in this case requires that “[eJach
motion (other than a motion to dismiss or a motion for summary decision) shall be accompanied
by a separate signed statement representing that counsel for the moving party has conferred with
opposing counsel in an effort in good faith to resolve by agreement the issues raised by the
motion and has béen unable to reach such an agreement.” Although Respondent failed to include
the required “meet and confer” statement, under the circumstances presented, Respondent’s
Motion will not be denied on that ground.

Although Respondent’s Motion shows a diligent effort to narrow the scope of documents
for which it seeks in camera treatment, Respondent has not adequately supported its requests.
The Sinclair Affidavit asserts that disclosure of the 37 documents at issue will hkely result in a
serious and clearly defined injury to ECM, but it does not explain how or why, or provide
sufficient information to evaluate the materiality or secrecy of the documents using any of the
factors set forth in Bristol-Myers. Furthermore, a review of some of the documents shows that
not all of the documents for which in camera treatment is sought meet the Commission’s strict
standard. For example, RX-84 is an email from 3M Company to ECM that reveals 3M’s
response to ECM’s position regarding trade secrets. It does not reveal any actual trade secrets.

In addition, “requests for in camera treatment must show ‘that the public disclosure of
the documentary evidence will result in a clearly defined, serious injury to the person or
corporation whose records are involved.” In re Kaiser Aluminum., 103 F.T.C. at 500 (quoting
In re Hood, 58 F.T.C. at 1188) (emphasis added). Complaint Counsel’s exhibit CCX-568 is an
email from FP International to ECM that contains the namies of FP International’s competitors
and some of the accounts that FP International has gained with its biodegradable products.
Nothing on the face of the document indicates that CCX-568 contains information that is
“sufficiently secret and sufficiently material” to ECM’s business that disclosure would result in
“serious competitive injury” to ECM, and the Sinclair Affidavit provides no such explanation to
support such a finding

Five of the exhibits for which Respondent seeks in camera treatment are entire transcripts
of the depositions of ECM employees and executives. Respondent asserts that these transcripts
contain confidential information related to sales, customers, and other sensitive and personal
information. With respect to deposition transcripts for which in camera protection is sought,
Respondent must narrow its request to specific excerpts reflecting confidential information. Jn
re North Texas Specialty Physicians, 2004 FTC LEXIS 44, at *5 (Apr. 1, 2004).

In addition, Complaint Counsel states that FP International, upon receiving notice from. Complaint Counsel that it
intended to introduce CCX-568 at the hearing in this matter, dicated that it would not seek in camera treatment for
this document. Opposition at 2 n3.