In the Matter of 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

PUBLIC 

ECM BioFilm$, Inc., 

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DOCKET NO. 9358 

a corporation. also d/b/a 

Enviroplastics Interrtational, 

Respondent. _____________________________ ) 

ORDER ON NON-PARTY O.W.S. INC.'S MOTION 

TO QUASH OR LIMIT SUBPOENA DUCES 'TECUM 

MAR 2 7 2014 

S~'!.;J.c9 SECRETAR'f 

On March 12,2014, non-party O.W.S. Inc. ("O.W.S.") filed a Motion to Quash or Limit 

a subpoena duces tecum ("Motion") served on it by Re-spondent ECM BioFilms, Inc . .("ECM"). 

O.W.S. &}so seeks an award of its expenses in connection with compliance with the subpoena 

Feder-al Trade Commission ("FTC") Complaint Counsel filed a limited opposition to O.W.S.'s 

Motion on March 20,2014 ("Limited Opposition"). Respondent filed its opposition to the 

Motion on March 24, 2014 ("Opposition"). 

Having f\llly reviewed and eonsidered the Motion, Limited Opposition, Opposition, and 

the exhibits thereto, the Motion is GRANTED IN PART AND DENIED IN PART? as explained 

below. 

I. Applicable Legal Standards 

Pursuant to FTC Rule 3.31(c)(l), "[u]nless otherwise limited by order of the 

Administrative Law Judge, ... [p ]arties may obtain discovery to the extent that it may be 

re:asonably expected to yield information relevant to the allegations of the complaint, to the 

proposed relief, or to the defenses of any respondent.'' 16 C.F.R § 3.3l(c)(l). However, even if 

proposed discovery meets the foregoing relevance te$1: 

[t]he frequency or extent of use of the discovery methods ... shall be limited by 

the Administrative Law Judge if he or she determines that: 

(i) The discovery sought from a party or third party is unreasonably 

cumulative or duplicative, or is obtainabie from some other s:ource that is more 

convenient, less burdensome, or less expensive; 
(ii) The party seeking discovery has had ample opportunity by discovery in 

the action to obtain the information sought; or 

(iii) The burden and expense of the proposed discovery on a party or third 

party outweigh its likely benefit. 

16 C.F.R. § 3.31(c)(2). 

A party seeking to quash a subpoena requesting relevant information has the burden of 

demonstrating that the request is unduly burdensome. FTC v. Dresser Indus., Inc., 1977 U.S. 

Dist. LEXIS 16178, at *12 (D.D.C. 1977); In re Intel, 2010 WL 2143904 (May 19, 2010); In re 

Polypore Int'l, Inc., 2009 FTC LEXIS 41, at *9 (Jan. 15, 2009). "Even where a subpoenaed 

third party adequately demonstrates that compliance with a subpoena will impose a substantial 

degree of burden, inconvenience, and cost, that will not excuse producing information that 

appears generally relevant to the issues in the proceeding." Polypore Int'l, 2009 FTC LEXIS 41, 

at *10; In re Kaiser Alum. & Chem. Corp., 1976 FTC LEXIS 68, at *19-20 (Nov. 12, 1976). 

II. Background 

The Complaint charges that ECM manufactures, advertises, and sells additives for 

plastics ("ECM Additives") and that Respondent engaged in deceptive trade practices in 

violation of Section 5 ofthe FTC Act by making false or unsubstantiated representations 

regarding the biodegradability of plastics treated with ECM Additives ("ECM Plastics"). 

Complaint~~ 2, 9-13. Respondent defends itself, in part, by asserting that it possesses a 

reasonable basis that substantiates its advertising representations. Answer~~ 12-13. 

Non-party O.W.S. is an independent testing company that tests various types of plastics 

for biodegradability. Motion at 1 (citing Affidavit of Richard Tillinger ("Tillinger Aff.") ~ 3). 

From 2007 to present, O.W.S. has tested the biodegradability ofhundreds of products and 

materials for over one hundred customers. Tillinger Aff. ~ 4. Respondent states that O.W.S. has 

performed tests on products containing ECM Additives. Opposition at 3-4. Respondent asserts 

that O.W.S. is an industry player that issues certifications for the Biodegradable Products 

Institute ("BPI"), a direct competitor ofECM that markets compostable products~ which 

Respondent describes as a technology that competes with ECM. Id Respondent further asserts 

that O.W.S. and BPI are both members of ASTM Subcommittee D20.96, which according to 

Respondent~ is the sarne committee that sets standards used in evaluations ofECM's products. 

Id 

In its Limited Opposition, Complaint Counsel states that O.W.S. prepared three 

potentially relevant reports containing statements regarding the biodegradability ofECM Plastics 

and, thus, 0. W.S. is likely to have probative information. 1 

1 Complaint Counsel expressly states that it takes "no position with respect to whether limited relief is appropriate 

given the alleged undue burden associated with ECM's subpoena." Limited Opposition at I. 

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III. Analysis 

O.W.S. asserts three reasons for quashing or limiting the subpoena: (1) confidentiality; 

(2) relevance; and (3) burden. In addition, O.W.S. seeks to recover costs it has incurred as a 

result of the subpoena. O.W.S. 's arguments pertaining to the confidentiality of the requested 

information are generally applicable to most of the document requests and thus are addressed 

first. O.W.S.'s arguments pertaining to relevance and burden are specific to each of the 

document requests and are addressed together, specific to each document request. Lastly, 

O.W.S.'s request for costs is addressed. 

A. Confidentiality 

O.W.S. asserts that the subpoena seeks confidential and proprietary information 

regarding O.W.S. customers, many ofwhom are competitors ofECM, and that O.W.S. owes 

strict contractual duties of non-disclosure and confidentiality to each such customer. Motion at 

2-3. Respondent counters that the Protective Order Governing Discovery Material ("Protective 

Order"), attached to the ECM subpoena, affords adequate protection for non-disclosure of 

confidential information. Opposition at 1. 

The Protective Order entered in this case pursuant to Commission Rule 3.31 (d) 

adequately protects the information that O.W.S. seeks to protect. The Protective Order provides 

that any document submitted by a third party during the course of this proceeding that is entitled 

to confidentiality shall be designated as confidential and may be disclosed only in limited 

circumstances, including to Respondent's outside counsel. Protective Order~~ 1, 2, 7. Outside 

counsel may only use confidential material "for the purposes of the preparation and hearing of 

this proceeding, or any appeal therefrom, and for no other purpose whatsoever." !d. ~ 8. Courts 

routinely issue protective orders which allow disclosure of confidential information, restricted to 

outside counsel only. E.g., Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 546 F. 

Supp. 2d 951,954 (S.D. Cal. 2008); Biovail Labs., Inc. v. Anchen Pharms., Inc., 463 F. Supp. 2d 

1073, 1076 (C.D. Cal. 2006); see also ODS Techs., L.P. v. Magna Entm 't Corp., 583 F. Supp. 2d 

1141, 1142 (C.D. Cal. 2008). 

"The fact that discovery might result in the disclosure of sensitive competitive 

information is not a basis for denying such discovery." LeBaron v. Rohm and Hass Co., 441 

F.2d 575, 577 (9th Cir. 1971); In re North Tex. Specialty Physicians, 2004 FTC LEXIS 20, at *4 

(Feb. 5, 2004). See also FTC v. Rockeftller, 441 F. Supp. 234,242 (S.D.N.Y. 1977), a.ff'd 591 

F.2d 182 (2d Cir. 1979) (stating that an objection to a subpoena on grounds that it seeks 

confidential information "poses no obstacle to enforcement."). Because adequate safeguards are 

in place to ensure that sensitive information will not be misused, O.W.S. may not withhold 

relevant materials on the asserted basis that the information is confidential. 

B. Relevance and burden 

0. W.S. makes the general argument that the subpoena requests irrelevant information, 

including test results concerning O.W.S. customers other than ECM, and argues that information 

that is unrelated to ECM cannot be reasonably expected to yield information relevant to the 

allegations of the Complaint, the defenses ofRespondent, or the proposed relief. O.W.S. asserts 

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that to the extent that the subpoena seeks information regarding O.W.S. customers other than 

ECM, that information is obtainable from sources that are more convenient and less burdensome, 

namely, those customers. O.W.S. then presents each contested request number and its 

explanation as to why each request seeks information that is either irrelevant, unduly 

burdensome, or both. 

Respondent does not address the relevance of each of its specific requests. Instead, 

Respondent argues generally that the information it seeks from O.W.S. is relevant to: (1) 

O.W.S.'s evaluation of plastic products containing the ECM Additive; (2) the scientific data 

underlying O.W.S. information that challenges the biodegradability of plastics infused with ECM 

Additives; (3) the financial ties and interests ofO.W.S. with ECM's competitors; and (4) the 

collaboration ofO.W.S. with others, including ECM competitors, to shape testing standards 

directly at issue in this proceeding. Opposition at 5. Respondent further asserts that facts 

already in ECM's possession reveal communications between O.W.S. and BPI, O.W.S.'s reports 

discussing the ECM Additive, and Complaint Counsel's heavy reliance on O.W.S. and 

documents concerning O.W.S. ld With respect to burden, Respondent asserts that it has 

narrowed its requests and O.W.S. has not met its burden of showing that production will in fact 

impose an undue burden. ld at 6-7. 

Request No. 1: All documents and correspondence concerning ECM BioFilms, Inc., 

[ECM's Chief Executive Officer] Robert Sinclair, and/or ECM BioFilms Master Batch Pellets. 

O.W.S. states that it is searching for and producing documents that are not customer 

specific and that generically reference ECM, Mr. Sinclair, and/or the ECM Master Batch Pellets. 

O.W.S. asks that this Request be limited to exclude documents concerning O.W.S. customers 

other than ECM and to include documents concerning ECM that are non-customer specific to the 

extent readily located.. 

This Request seeks relevant information and the burden and expense to O.W.S. do not 

outweigh the likely benefit. 0. W.S. is hereby ORDERED to produce documents that reference 

ECM, Mr. Sinclair, and/or the ECM Master Batch Pellets, regardless of whether such documents 

concern O.W.S. customers other than ECM. 

Request No.3: All correspondence between O.W.S. and any member, employee, 

representative, or officer of the United States Federal Trade Commission. 

O.W.S. states that it is searching for and producing documents readily identifiable as 

correspondence with the FTC that may regard ECM. O.W.S. states that it does not know the 

name, identity, or even words to search for to know whether correspondence has been with a 

"member, employee, representative, or officer" of the FTC. O.W.S. thus asks that this Request 

be limited to those documents where O.W.S. knowingly corresponded with the FTC with regard 

toECM. 

This Request, as modified herein, seeks relevant information and the burden and expense 

to O.W.S. do not outweigh the likely benefit. O.W.S. is hereby ORDERED to produce 

documents that are readily identifiable as correspondence with the FTC regarding ECM or any 

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ECM testing or ECM Additive. 

Request No.4: All correspondence between O.W.S. and any member, employee, and/or 

representative of the Biodegradable Products Institute. 

O.W.S. states that it is searching for and producing correspondence that is not customer 

specific and that relates generally to the BPI. O.W.S. argues that this Request encompasses 

documents that are not relevant to this proceeding, including communications with customers 

regarding requests for certification of customers' own products. O.W.S. further argues that some 

ofO.W.S.'s customers are members ofthe BPI and that its correspondence with those customers 

is responsive to this Request, but not relevant to this matter. 

O.W.S. asks that this Request be limited to only correspondence between O.W.S. and 

known employees of the BPI in regard to the work of BPI to the extent the correspondence 

directly pertains to ECM itself, and to exclude O.W.S.'s customers' correspondence and such 

customers' BPI certification efforts. 

This Request, as modified herein, seeks relevant information and the burden and expense 

to O.W.S. do not outweigh the likely benefit. O.W.S. is hereby ORDERED to produce 

correspondence between O.W.S. and any known member, employee, and/or representative of the 

BPI that pertains to or relates to or makes any reference to ECM or ECM Additives or ECM 

Plastics. O.W.S. need not produce its customers' correspondence and such customers' BPI 

certification efforts if such documents do not pertain to ECM. 

Request No.5 (rephrased by agreement): Since January 1, 2010, all documents 

concerning any test or report (including any notes and raw data) performed or written to the 

biodegradability of plastic products under ASTM standards D5511 and D5526 for ECM and/or a 

plastic product containing the ECM Additive. 

O.W.S. states that testing under these ASTM standards constitutes a significant amount 

ofO.W.S.'s business. O.W.S. asserts that compliance with this Request would require O.W.S. to 

search for and produce other customers' documents and that the burden and expense involved in 

identifying and producing all responsive documents far outweighs the likely benefit of those 

documents. O.W.S. asks that the Request be limited to include only responsive tests performed 

forECM. 

This Request seeks relevant information and the burden and expense to O.W.S. do not 

outweigh the likely benefit. O.W.S. is hereby ORDERED to produce documents concerning any 

test or report (including any notes and raw data) performed or written to the biodegradability of 

plastic products under ASTM standards D5511 andD5526 for ECM and/or a plastic product 

containing the ECM Additive. 

Request Nos. 6 and 8: All documents concerning the education, training, experience, and 

employee evaluations of Mr. Bruno de Wilde (No.6) and of Mr. Richard Tillinger (No.8). 

O.W.S. states that these Requests seek entirely irrelevant documents and seeking this 

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information is improper. O.W.S. asks that these Requests be quashed. Respondent asserts that 

Complaint Counsel has relied repeatedly on O.W.S. reports in depositions and pleadings. 

(Opposition at 3). 

Requests Nos. 6 and 8, as modified herein, seek relevant information and the burden and 

expense to O.W.S. do not outweigh the likely benefit. O.W.S. is hereby ORDERED to produce 

all documents concerning the education, training, experience, and employee evaluations of Mr. 

Bruno de Wilde (No.6) and of Mr. Richard Tillinger (No.8) if these employees have performed 

tests on or have been involved in any way in testing or evaluating ECM Additives or ECM 

Plastics. 

Request No. 10 (rephrased by agreement): Since January 1, 2010, all documents and 

correspondence concerning any amendments, vote(s); and/or "negatives" related to ASTM 

standard D5511 and D5526. 

O.W.S. asserts a relevance objection and states that the burden of producing responsive 

documents far outweighs their expected benefit. O.W.S. further states that Mr. Sinclair is on the 

same ASTM subcommittee as O.W.S. and thus Respondent can obtain these documents from a 

less burdensome source- Mr. Sinclair. O.W.S. asks that this Request be quashed. 

Request No. 10, as modified herein, seeks relevant information and the burden and 

expense to O.W.S. do not outweigh the likely benefit. O.W.S. is hereby ORDERED to produce 

all documents and correspondence since January 1, 2010, concerning any amendments, vote(s) 

and/or "negatives" related to ASTM standard D5511 and D5526 that refer to or concern ECM or 

ECM Additives or ECM Plastics. 

Instruction C: O.W.S. asserts that this instruction requires a complete copy of each 

document be produced, regardless of relevance. O.W.S. requests that this instruction be stricken 

and that O.W.S. be allowed to produce only those portions of documents that relate to ECM's 

testing ofECM's own products. 

It is hereby ORDERED that ECM may redact portions of documents consistent with this 

Order. 

Instruction L: O.W.S. asserts that this instruction improperly requires answers to 

interrogatories with regard to documents withheld for privilege. O.W.S. states that it will 

comply with 16 C.F.R. 3.38A and requests that this instruction be stricken. 

It is hereby ORDERED that ifO.W.S. complies with FTC Rule 3.38A, it need not 

comply with Instruction L. 

C. Request for costs 

O.W.S. asserts that it has already incurred significant costs as a direct result of the 

subpoena and will continue to do so. O.W.S. asserts that the expenses it has been forced to incur 

thus far are unreasonable and thus O.W.S. requests that ECM be ordered to pay for all additional 

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expenses O.W.S. will incur if its Motion is denied. Motion at 4-5. 

Respondent counters that O.W.S. has not demonstrated that ECM's subpoena is 

unreasonable and that ECM is required to bear the reasonable costs of compliance with the 

subpoena. Opposition at 8. 

The Commission, in In re Int'l Tel. & Tel. Corp., 97 F.T.C. 202) 1981 FTC LEXIS 75 

(March 13, 1981), has held that a "subpoenaed party is expected to absorb the reasonable 

expenses of compliance as a cost of doing business, but reimbursement by the proponent ofthe 

subpoena is appropriate for costs shown by the subpoenaed party to be unreasonable." 1981 

FTC LEXIS 75, at *3. See In re R.R. Donnelley & Sons Co., 1991 FTC LEXIS 268, at* 1-2 

(June 6, 1991) (holding that subpoenaed party "can be required to bear reasonable costs of 

compliance with the subpoena')). To determine whether expenses. are "reasonable," the 

Administrative Law Judge ''should compare the costs of compliance in relation to the size and 

resources of the subpoenaed party." lnt'l Tel. & Tel., 1981 FTC LEJCIS 75, at *3. 

In support of its request for costs, O.W.S. avers that: its business operations consist of 

only two people; its annual revenue over the last three years was approximately $698,000, and its 

average annual profit, approximately $11,000; and O.W.S. has incurred legal fees of 

approximately $19,000 and already spent approximately 60 hours, at a cost of approximately 

$5,500, responding to the subpoena, already eliminating O.W.S.'s 2014 profit. (Tiffinger Aff. at 

~,10, 11, 14). In light ofthe fact that, as Complaint Counsel asserts, O.W.S. has conducted three 

studies assessing the biodegradability ofEMC Plastics, O.W.S. possesses information relevant to 

whether the ECM Additive works as advertised, a central issue in this case. Thus, O.W.S. has 

not met its burden of demonstrating that the burden or expense of the discovery outweigh its 

likely benefit. Given the likely probative value of the requested documents, although O.W.S. has 

provided specific information regarding the burden and expense involved in producing the 

req~ested documents, as narrowed by this Order, ECM's subpoena is not unreasonable. 

Accordingly, O.W.S.'s request for an award of its expenses is DENIED. 

IV. Conclusion 

For all the foregoing reasons, O.W.S.'s Motion is GRANTED IN PART and DENIED IN 

PART. O.W.S. is hereby ORDERED to comply with the .subpoena, as narrowed by this order. 

ORDERED: 

Date: March 27,2014 

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