PUBLIC DOCUMENT

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

RESPONDENT’S MOTION FOR LEAVE TO SERVE SUBPOENAS DUCES TECUM

BEARING THE COMMISSION SEAL TO COMPLAINT COUNSEL’S TESTIFYING 

EXPERTS

ECM BioFilms, Inc. (“ECM”), by counsel, hereby requests leave to serve Drs. Stephen

McCarthy, Thabet Tolaymet, and Shane Frederick (“Complaint Counsel’s Experts”) with 

subpoenas duces tecum bearing the Commission’s seal. In his Order of June 2, 2014, the Court 

denied Respondent’s Motion to Compel the Experts’ response to ECM’s subpoenas because the 

subpoenas were deemed technically deficient due to the absence of a raised Commission seal 

upon them.

Because the content of the subpoenas to be issued under seal by leave will be precisely 

the same as the subpoenas previously served but lacking the seal, Complaint Counsel is subject 

to no surprise or unfair tactic. Complaint Counsel will suffer no prejudice in responding to the 

subpoenas in light of the fact that the requests contained therein will be the same. Moreover, this 

motion is filed before any expert report has issued or expert deposition has taken place, and the 

hearing in this matter is over two months away, i.e., August 5, 2014.

Under Rule 3.31A(d), “the Administrative Law Judge may order further discovery by 

means other than deposition, subject to restrictions as to scope as the Administrative Law Judge 

06 04 2014
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may deem appropriate.” 16 C.F.R. 3.31A(d). Here, the subpoenas are essential to explore fully 

the Experts’ independence, biases, and conflicts of interest that bear upon the credibility of their 

opinions and testimony. 

ECM served its subpoenas in advance of the fact discovery deadline. Complaint Counsel 

requested that the subpoenas for its experts be served directly upon Complaint Counsel and then 

accepted that service without expressing any reservation that the subpoenas were invalid due to 

an absence of the Commission seal, even responding in part to one of the requests therein for 

production. Here, the party receiving the subpoenas is, in fact, an agent of the Federal Trade 

Commission and has direct knowledge that the subpoena requests were coming from a bona fide 

party seeking documents in an active case (thus, the substantive purpose for the seal was not 

disserved). The Commission’s Seal is designed to apprise non-parties that the subpoena is bona 

fide because it bears the imprimatur of the Commission (i.e., that it has legal force and 

effect). Under the present facts, the absence of Commission Seal was, at most, a technical and 

inadvertent defect. See, e.g., Atl. Inv. Mgmt., LLC v. Millennium Fund I, Ltd., 212 F.R.D. 395, 

397 (N.D. Ill. 2002) (finding under Federal rule 45 as curable defect a subpoena not signed by 

counsel). 

The equities favor grant of this motion. There is ample time remaining for subpoena 

response before the hearing, and any subpoena under Commission Seal allowed by the Court will 

be precisely the same in content as ECM’s revised requests issued April 15, 2014 to Complaint 

Counsel, thus affording ample advance notice. It is anticipated that Complaint Counsel will 

again refuse to comply with the requests on the same substantive grounds as it has articulated to 

the Court, and ECM will submit again its Motions to Compel, all well in advance of the close of 

expert discovery.
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Grant of this motion is also in furtherance of a fair hearing on the legal issues involved

because it preserves Respondent’s rights to a full and fair inquiry into Complaint Counsel’s 

expert witnesses. Here Complaint Counsel has hand-picked experts with ties to opposing 

industry and those of sister federal agencies who opposed sections of the Revised Green Guides 

that concern biodegradability claims. These experts have biases, and their personal interests may 

affect the assumptions they reach when interpreting data.

For the foregoing reasons, explained more fully in ECM’s accompanying Memorandum, 

good cause exists for grant of this motion. If, however, his Honor chooses not to grant this 

motion, we ask that the matter be certified to the Commission pursuant to Rule 3.42(c)(10) for 

the reasons more fully explained in the attached memorandum.

Respectfully submitted,

 

Jonathan W. Emord

Peter A. Arhangelsky

Eric W. Awerbuch

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

DATED this 4th day of June 2014.
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STATEMENT CONCERNING CONFIDENTIALITY

The undersigned Respondent’s Counsel hereby states that the content of the foregoing 

motion, memorandum, and exhibits do not contain confidential information under this Court’s 

Protective Order and, so, ECM hereby files this motion to the public docket.

DATED: June 4, 2014.

 /s/ Jonathan W. Emord

Jonathan W. Emord

Peter A. Arhangelsky

Eric W. Awerbuch

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937
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STATEMENT CONCERNING MEET AND CONFER

Pursuant to Rule 3.22(g), 21 C.F.R. § 3.22(g), and the ALJ’s Scheduling Order, ¶4, the 

undersigned counsel certifies that, on June 3, 2014, at approximately 4:00 PM EST, Respondent’s 

counsel, Peter Arhangelsky, conferred by conference call with Complaint Counsel, Jonathan 

Cohen, in a good faith effort to resolve by agreement the issues raised in the foregoing Motion for 

Sanctions. The parties have been unable to reach an agreement on the issue raised in the attached 

motion.

Respectfully submitted,

 

Jonathan W. Emord (jemord@emord.com)

Peter A. Arhangelsky

Eric W. Awerbuch

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938
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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

[PROPOSED] ORDER GRANTING RESPONDENT ECM BIOFILMS, INC.’S MOTION 

FOR LEAVE

This matter having come before the Administrative Law Judge on June ___, 2014, upon a 

Motion for Leave (“Motion”) filed by Respondent ECM BioFilms, Inc. (“ECM”) pursuant to 

Commission Rule 3.31 and 3.31A, for an Order to serve subpoenas duces tecum on Complaint 

Counsel’s testifying experts: Drs. Stephen McCarthy, Thabet Tolaymet, and Shane Frederick. 

Having considered ECM’s Motion and all supporting and opposing submissions, and for 

good cause appearing, it is hereby ORDERED that ECM’s Motion is GRANTED; it is 

ORDERED that Drs. McCarthy, Tolaymet, and Frederick shall forthwith and without delay 

provide full responses to ECM’s subpoenas duces tecum. 

ORDERED: ______________________

D. Michael Chappell

Chief Administrative Law Judge

Date: 
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CERTIFICATE OF SERVICE

I hereby certify that on June 4, 2014, I caused a true and correct copy of the paper 

original of the foregoing document to be served as follows: 

One electronic copy to the Office of the Secretary filed through the Federal Trade 

Commission’s E-Filing System:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-113

Washington, DC 20580

Email: secretary@ftc.gov

One electronic courtesy 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 Complainant:

Katherine Johnson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov
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I further certify that I retain a paper copy of the signed original of the foregoing 

document that is available for review by the parties and adjudicator consistent with the 

Commission’s Rules.

 

Jonathan W. Emord

Peter A. Arhangelsky

Eric W. Awerbuch

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937
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Respondent’s Attachment A
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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC DOCUMENT

RESPONDENT ECM BIOFILM’S MEMORANDUM IN SUPPORT OF ITS MOTION 

FOR LEAVE TO SERVE SUBPOENAS DUCES TECUM BEARING THE 

COMMISSION’S SEAL TO COMPLAINT COUNSEL’S TESTIFYING EXPERTS

Respondent ECM BioFilms, Inc. (“ECM”) submits this Memorandum after receipt of the 

Court’s Order of June 2, 2013, in which the Court denied Respondent’s Motion to Compel 

Complaint Counsel’s experts’ responses to ECM’s subpoenas duces tecum on the basis that the 

subpoenas in issue did not bear the Commission’s seal. ECM seeks reissuance of the very same 

subpoenas originally served modified only to include the application of the Commission seal by 

the Secretary. Under Rule 3.34, when presented with an executed subpoena the Secretary 

applies the seal without a substantive review of the content of the subpoena. Rule 3.34(b). 

Because the subpoena requests are precisely the same as those contained in the revised 

subpoenas originally issued on April 15, 20141 and because Complaint Counsel accepted service 

of those subpoenas, argued directly concerning the content of the requests in pleading practice, 

and has been on notice of that content since April 7, 2014, it suffers no surprise. Because ECM 

 1 ECM’s issued its subpoenas on April 7, 2014 (included as Exh.’s RX-A-1; RX-A-2; RxA-3)., but in a good faith effort to resolve the matter short of motion practice, and at request of 

Complaint Counsel, issued revised requests on April 15, 2014 (included as Exh.’s RX-B-1; RXB-2; RX-B-3).
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moves fully two months before the hearing scheduled in this case and before any expert report 

has issued or expert deposition has occurred, no prejudice results from grant of this motion. 

Finally, the equities strongly favor enabling the Respondent to pursue an essential line of inquiry 

through full discovery, including the obtaining of all relevant documents achievable only through 

subpoena, to wit: the bias, conflict of interest, and lack of independence of Complaint Counsel’s 

experts.

Under Rule 3.31A(d), “the Administrative Law Judge may order further discovery by 

means other than deposition, subject to restrictions as to scope as the Administrative Law Judge 

may deem appropriate.” 16 C.F.R. 3.31A(d). Fact discovery closed on April 7, 2014. See Dkt. 

No. 9358, ALJ Third Revised Scheduling Order. ECM therefore seeks leave to have the very 

same expert subpoenas it served on Complaint Counsel on April 15, 2014 served again upon 

Complaint Counsel differing only in that they will bear the Commission’s seal affixed by the 

Secretary in accordance with his Honor’s June 2 Order.

The bias, conflict of interest, and independence of Complaint Counsel’s experts are 

directly germane to the reliability and credibility of their opinions. See 16 C.F.R. 3.31(c); Fed. 

R. Evid. 702; Behler v. Hanlon, 199 F.R.D. 553, 561 (D. Md. 2001). Evidence within ECM’s 

possession reveals that one key Complaint Counsel expert, Dr. Stephen McCarthy, has a vested 

interest in the outcome of these proceedings, but full documentary proof of the underlying 

associations still needs to be adduced.

2

 ECM is entitled under Rule 3.31(c)(1) to probe to the 

 2 McCarthy invented a patent for a technology that competes directly with ECM’s 

biodegradable additive. See Exh. RX-G (U.S. Patent No. 5,883,199 (issued Mar. 16, 1999)). He 

profits from that patent. The University of Massachusetts, Lowell (“UMass”), McCarthy’s 

employer, is the patent’s assignee. See Exh. RX-G; RX-H-1 (Metabolix Website Article). 

Metabolix, Inc. is the exclusive licensee of the technology. See Exh. RX-H-1. Metabolix’s 

potential royalties from licensing UMass patents surpass $100,000 per year. See Exh. RX-H-2 

(Umass Website Article). Metabolix supplied grants to UMass of approximately $2.5 million, 
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fullest extent possible issues of independence, bias, and conflict of all Complaint Counsel’s 

experts. Testimonial evidence, by itself, cannot achieve that end. 

BACKGROUND

The procedural posture of this Motion is generally explained in ECM’s Motion to 

Compel, filed May 19, 2014. In sum, ECM seeks to subpoena Complaint Counsel’s experts, 

Complaint Counsel has objected to the requests for documents, and the Parties have exchanged 

their respective positions. See Exh.’s RX-A-1 - RX-F-3. On May 19, 2014, ECM filed a Motion 

to Compel seeking compliance with expert subpoenas. On June 2, 2014, the Court denied 

ECM’s Motion as technically deficient because the subpoenas did not bear the Commission seal, 

a requirement not imposed by statute or by FTC rule but referenced in a case packet sent by the 

Office of the Secretary to the parties in October 2013. See Dkt. No. 9358, ALJ Order (June 2, 

2014). The substantive purpose of a seal is to alert non-parties that the requests are in fact bona 

fide, coming from counsel representing parties in this dispute. In this case, because the subpoena 

is part of cooperative efforts at discovery engaged by the actual parties and was served upon 

Complaint Counsel (agents of the FTC itself), the case packet requirement is a technical one, but 

one nevertheless that the presiding officer makes clear he is obliged to honor in his June 2 Order.

Information sought by ECM in its subpoenas is necessary to fully evaluate Complaint 

Counsel’s expert opinions. Complaint Counsel’s witnesses have connections relevant to ECM’s 

 

sponsored more than 50 students for their master’s and doctorate degrees, and has made 

substantial equipment donations (over $500,000). See Exh. RX-H-2. McCarthy and/or UMass 

may also be the recipient of other direct and indirect remunerative benefits from the exclusive 

license. Since 2008, Metabolix has lobbied the FTC to act against ECM. See Exh. RX-I. 

Metabolix is also a member of the Biodegradable Products Institute (BPI), a primary ECM 

competitor, and sells approximately a dozen products that are “BPI certified.” See Exh. RX-J-1; 

RX-J-2. BPI is a vocal opponent of ECM, and has lobbied the FTC repeatedly since at least 

2005 to act against ECM and ECM’s customers. See Exh. RX-K (BPI Correspondence to FTC 

of April 25, 2005).
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defense, including industry ties that give rise to conflicts of interest. ECM has documented some 

of those bases in its May 19, 2014 Motion to Compel (and supporting documentation). In sum, 

Complaint Counsel’s witnesses are closely aligned with the “composting” industry and 

companies that advocate against ECM’s additive for their own commercial advantage. 

Complaint Counsel’s scientific expert, Dr. McCarthy, holds patents giving him a direct financial 

interest in the outcome of this case, a strong witness and/or testimonial exclusionary factor. He 

has also received grant money from companies that have aligned themselves against landfill-able 

technologies like ECM’s additive and against ECM itself. The extent of those connections, and 

the degree to which such experts are conflicted, is a material issue that ECM must explore in full. 

ARGUMENT

A. Good Cause Exists for Grant of this Motion Because ECM Timely Served 

and Sought Enforcement of its Subpoenas to Complaint Counsel’s Experts 

ECM timely served its subpoenas duces tecum at issue here on Complaint Counsel on 

April 7, 2014, well within the fact discovery cut-off.3

 Complaint Counsel had asked ECM to 

serve those subpoenas directly on Complaint Counsel, rather than on the experts themselves. See

Exh. RX-C. As agents of the Commission, Complaint Counsel was aware that ECM’s counsel 

could duly execute subpoenas under Rule 3.34(b). ECM had served its subpoenas on Complaint 

Counsel in substantially the same format over the course of this entire litigation without 

objection and responses to those subpoenas have been received and shared by counsel with one 

another. ECM also served its subpoenas on the Office of the Administrative Law Judge. ECM 

served its subpoenas on forms provided directly by the Commission, thus following the letter and 

 3 To the extent that the Court were to find that ECM delayed in seeking leave to file the 

instant motion, such delay was inadvertent and non-prejudicial.
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spirit of Rule 3.34(b). ECM had received no objections to its prior unsealed subpoenas and, in 

fact, Complaint Counsel rose in defense of ECM’s unsealed subpoenas in separate motion 

proceedings. See Dkt. No. 9358, CC Limit. Opp. to O.W.S. Mot. to Quash (Mar. 20, 2014). 

Indeed, the parties have through mutual agreement and course of dealing deviated from the rules 

in a spirit of cooperation in many instances. For instance, they have agreed to permit expert 

discovery to continue past the Scheduling Order’s deadlines to accommodate conflicting

schedules of counsel. See Dkt. No. 9358, Joint Notice Regarding Expert Discovery (May 15, 

2014). In short, the substantive ends of discovery have been served over technical rule 

requirements, all without objection.

In 2009 the Commission amended the FTC Rules of Practice so that “[c]ounsel for a 

party may sign and issue a subpoena, on a form provided by the Secretary...” See 16 C.F.R. § 

3.34(b) (emphasis added). Those rules were specifically changed so that parties would not need 

the Secretary’s or Commission’s authorization and signature. See 74 Fed. Reg. 1804, 1814 

(“These revisions are intended to expedite the commencement of hearings by speeding the 

issuance of discovery and hearing subpoenas.”). ECM served its subpoenas on a form provided 

directly by the Secretary, and in a manner consistent with the Rules of Practice and the 

Scheduling Order. The requirement that ECM obtain not only the Commission form but, 

separately, an applique of embossment bearing the Commission’s seal is not found in Rule 3.34, 

the Scheduling Order in this case, or any publicly available document on the FTC’s docket or 

elsewhere.4

 The apparent purpose of the seal is to assure non-parties that, indeed, the requests 

 4 Blank subpoena forms are apparently unavailable on the FTC website but, even if they 

were, non-parties can check active cases on the FTC docket and view notices of appearance by 

counsel. That makes the risk of forgery slight. Furthermore, subpoenas served on ECM by 

Complaint Counsel lack the Commission’s seal. That seal is either not visible on electronic files 

(which are the mandated format under the Scheduling Order), or not applied to Complaint 
PUBLIC DOCUMENT

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are formally issued and are bona fide. When subpoenas are issued by and served upon the 

parties themselves, that substantive need for validation that they are issued by parties to an FTC 

proceeding is absent, making the seal a technicality, but one, nevertheless, that the Court has 

determined in its June 2 Order it must enforce.

ECM now moves promptly to correct the technical error through this motion for leave. 

The subpoenas it seeks to have reissued with the Commission seal affixed are substantively the 

same as the subpoenas previously issued on April 7, 2014. Indeed, the only difference will be to 

provide Complaint Counsel subpoenas that bear the raised, embossed Commission seal. 

Complaint Counsel has possessed the proffered subpoenas for more than thirty days, and the 

requests therein have been studied and vetted in motions practice. Complaint Counsel and its 

witnesses therefore suffer no surprise from the reissued subpoenas. Rule 3.34 does not afford the 

Commission’s staff authority to reject or refuse to place the seal on ECM’s subpoenas and, thus, 

the subpoenas presented by leave will be assigned the Commission seal by the Secretary as a 

matter of course. That fact is particularly significant where, as here, Complaint Counsel works 

for the Commission and, so, comprehends that the subpoenas it received before will be the same 

it receives now but for the addition of the raised seal.

B. The Merits Briefs Concerning ECM’s Expert Subpoenas Have Been Before 

this Court

By this motion, ECM asks the Court only to grant leave for ECM to serve properly issued 

subpoenas on Complaint Counsel’s experts. ECM’s legal position concerning the merits of those 

 

Counsel’s subpoenas. In other words, ECM’s subpoenas and Complaint Counsel’s have been 

indistinguishable as to form for those served with same. See, e.g., Exh. RX-L (CC Subpoena to 

D&W Fine Pack, LLC). If the Commission seal is just an embossed impression not visible 

through electronic scanning or copying, that would suggest that that procedural element at issue 

here (the Commission’s seal) is an antiquated relic from the pre-2009 Rules of Practice that is 

not supported by the revised rules.
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subpoenas, and Complaint Counsel’s objections to same, have been before this Court through 

briefing on ECM’s Motion to Compel Expert Witnesses’ Responses to Subpoenas Duces Tecum 

(filed May 19, 2014; decided June 2, 2014). 

C. The Commission’s Informal Subpoena Policy Violates the Administrative 

Procedure Act

ECM, in good faith, complied with Rule 3.34 and this Court’s Scheduling Order 

when issuing timely expert subpoenas. The letter from the office of the Secretary referenced in 

the Court’s June 2 Order that require Commission approval and “seal” before issuing subpoenas 

constitutes a legislative rule because, as was the case in the June 2 Order, it affects one’s rights in 

discovery. See Alabama v. Centers for Medicare & Medicaid Servs., 780 F. Supp. 2d 1219, 

1224 (M.D. Ala. 2011) aff'd, 674 F.3d 1241 (11th Cir. 2012).

5

This Court’s June 2 Order characterizes the Letter’s instruction concerning subpoenas 

as a “requirement.” See Dkt. No. 9358, ALJ Order at 2. This Court therefore held the Letter to

be the same as a rule that defines a subpoena precondition that is nowhere present in the Rules of 

Practice, this Court’s Scheduling Order, the Code of Federal Regulations, or in the Federal 

Register. The Letter’s requirement also deviates from Rule 3.34 as amended in 2009.

Section 3 of the Secretary’s Letter, which concerns subpoenas, adds additional 

requirements to, and separate from, Rule 3.34. See Exh. RX-M at 4. This Court’s June 2, 2014

Order explained that, “[t]he FTC Rules no longer require the Secretary to sign subpoenas,” but 

did not explain how the Letter could be derived from, or consistent with, the language of Rule 

3.34. See Dkt. No. 9358, ALJ Order at 2. This Court explained that failure to comply with 

 5 The CMS Letter in Alabama was a legislative rule because it went beyond the “text of 

the statute” and was not “linguistically tied to the text of the statute it purports to interpret.” Id.

at 1230. The court noted that the letter “[did] not cite to or quote any statutory language at all.” 

Id. at 1231. The court also described how the letter “creates new law.” Id. 
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Section 3 of the Letter is a violation of Rule 3.34, rendering a subpoena invalid. See Dkt. No. 

9358, ALJ Order at 3.

The court in Alabama found that remand and vacatur of the agency’s unlawfully 

promulgated rule was proper. Alabama, 780 F. Supp. at 1232. The same resolution would be

proper here were redress not forthcoming. However, to eliminate confusion, ECM instead 

requests leave to serve its expert subpoenas with the Commission’s “seal.” However, should 

ECM be denied the ability to seek documentary discovery from Complaint Counsel’s experts on 

grounds that its subpoenas were untimely, owing to the lack of Commission seals on its 

subpoenas, ECM requests that the Court certify this issue for Commission review under Rule 

3.42(c)(10).

RELIEF

For the foregoing reasons, ECM moves this Court to allow ECM to reissue the 

subpoenas it previously executed for Drs. McCarthy, Tolaymet, and Frederick with the 

Commission’s raised seal affixed, allowing subpoena response beyond the time limit 

specified for the completion of fact discovery.

Respectfully submitted,

 

Jonathan W. Emord (jemord@emord.com)

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

DATED this 4th day of June 2014.
RESPONDENT 

EXHIBIT 

RX-A-1 

Resp. Mot. for Leave 

Exh. RX-A-1

PUBLIC DOCUMENT
April 7, 2014 

VIA UPS

Dr. Stephen McCarthy, PhD 

Dept. of Plastics Engineering

University of Massachusetts Lowell

One University Avenue, Office, Ball 207 

Lowell, MA 01854 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Dr. McCarthy: 

 Pursuant to the Federal Trade Commission’s Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.’s subpoena duces tecum. This subpoena requests that you 

produce documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter.

 Please provide all requested documents no later than April 25, 2014. We welcome you to 

contact us with questions.

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

 Lou F. Caputo 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

(602) 388-8899 | FAX (602) 393-4361

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

(202) 466-6937 | FAX (202) 466-6938

Lou F. Caputo, Esq.

602.388.8901

lcaputo@emord.com

A Professional Corporation

WASHINGTON | VIRGINIA | PHOENIX

Resp. Mot. for Leave 

Exh. RX-A-1

PUBLIC DOCUMENT
Resp. Mot. for Leave 

Exh. RX-A-1

PUBLIC DOCUMENT

SUBPOENA DUCES TECUM 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

1. TO 

Dr. Stephen McCarthy 

Dept. of Plastics Engineering 

University of Massachusetts Lowell 

One University Avenue, Office, Ball 207 

Lowell, MA 01854 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 

Emord & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

6. SUBJECT OF PROCEEDING 

4. MATERIAL WILL BE PRODUCED TO 

Peter Arhangelsky 

5. DATE AND TIME OF PRODUCTION 

April25, 2014, 5:00PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

7. MATERIAL TO BE PRODUCED 

See Attached Schedule A for description of all documents and materials. 

8. ADMINISTRATIVE LAW JUDGE 

Chief Administrative Law Judge 

D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Jonathan W. Emard, Peter Arhangelsky, Lou 

Caputo 

Emard & Associates, P.C. for Respondent, 

ECM BioFilms, Inc. 

DATE SIGNED SIGNATURE OF UNSEL ISSUING SUBP 

April 7, 2014 

!)j[A._ M 

APPEARANCE 

The delivery of this subpoena to you by any method 

prescribed by the Commission's Rules of Practice is 

legal service and may subject you to a penalty 

imposed by law for failure to comply. 

MOTION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any 

motion to limit or quash this subpoena must comply with 

Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), and in 

particular must be filed within the eartier of 10 days after 

service or the time for compliance. The original and ten 

copies of the petition must be filed before the 

Administrative Law Judge and with the Secretary of the 

Commission, accompanied by an affidavit of service of 

the document upon counsel listed in Item 9, and upon all 

other parties prescribed by the Rules of Practice. 

FTC Form 70-E (rev. 1/97) 

TRAVEL EXPENSES 

The Commission's Rules of Practice require that fees and 

mileage be paid by the party that requested your appearance. 

You should present your claim to counsel listed in Item 9 for 

payment. If you are permanenUy or temporarily living 

somewhere other than the address on this subpoena and it 

would require excessive travel for you to appear, you must get 

prior approval from counsel listed in Item 9. 

A copy of the Commission's Rules of Practice is available 

online at http:/fbjt,ly/EfCRulesofPractjce. Paper copies are 

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 
SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. STEPHEN MCCARTHY

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

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Exh. RX-A-1

PUBLIC DOCUMENT
an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

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PUBLIC DOCUMENT
M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents that concern ECM BioFilms, Inc., any past and present employee 

or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. 

1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to, emails, 

documents appended to emails, reports and any other written or electronic document of any kind 

that is communicated from the subpoena recipient or its agents to any and all other persons and 

entities. 

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3. Regardless of the date, all correspondence, contracts, retainers, engagement letters 

between you and any public or private firm that manufactures and/or produces biodegradable 

and/or compostable products. 

4. Regardless of the date, all reports, analyses, assessments, tests, summaries, and 

conclusions issued to any public or private firm that manufactures and/or produces biodegradable 

and/or compostable products. 

5. Regardless of the date, all correspondence, contracts, retainers, engagement letters 

between you and any public or private firm that manufactures and/or produces a product or 

substance in competition with biodegradable plastics. 

6. Regardless of the date, all reports, analyses, assessments, tests, summaries, and 

conclusions issued to any public or private firm that manufactures and/or produces a product or 

substance in competition with biodegradable plastics. 

7. Regardless of the date, all correspondence, contracts, retainers, and/or agreements 

with the University of Massachusetts, Lowell (“Umass”) concerning research, funding, or grants 

related to biodegradable plastics or polymers. 

8. Regardless of the date, all patents invented and/or owned by you. 

9. Regardless of the date, all pending patents invented and/or sought by you. 

10. All licensing or royalty agreements involving or concerning your patents or 

intellectual property related to biodegradable and compostable products).

11. Copies of the following contract and grant support, all correspondence and 

proposals concerning such contracts and grants, and sources of funding for same: 

a. Metabolix, “Development of Novel of Biodegradable Materials, $1,500,196 

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PUBLIC DOCUMENT
b. NSF Center for Biodegradable Polymer Research, $1,200,000 Industrial Members 

(8/93-present), Principal Investigator 

c. Polymer Degradation Research Center, $475,000, Industrial Members (8/89-8/93) 

d. Digital, “Plastics Materials Research”, $458,706

e. Metabolix Inc., Performance of PHA Derived Chemicals and Polyols in 

Polyurethane, $141,465 

f. 3M, “Composting Research”, $155,000 

g. Warner Lambert, “Biodegradable Polymer Research”, $116,591 

h. National Science Foundation, “Biodegradable Polymer Research Center”, 

$110,000 (8/93-8/95) 

i. Department of the Army, “Polymer Degradation Research”, $104,000 

j. Institute for Plastics Innovation, “Injection Molding Research”, $75,000 

k. Massachusetts Centers of Excellence, “Institute for Plastics Innovation”, $75,000 

l. Metabolix Inc., Performance of Polyhydroxyalkanote Derived Chemicals and 

Polyols in Polyurethane, $71,465 

m. Battelle, “Biodegradable Packaging Development”, $59,865 

n. DuPont Corian, $50,000 

o. Invista, “Evaluation of Plasticizers”, $ 28,000 

p. Massachusetts Centers of Excellence, “Polymer Degradation Research”, $25,000

12. All documents and materials concerning your appointment or nomination of any 

position, title. or role with the BioEnvironmental Polymer Society and/or the Society of Plastics 

Engineering.

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13. All documents concerning any testing or product evaluations involving 

biodegradable and/or compostable plastics in which you participated on behalf of, or as a 

member of, the BioEnvironmental Polymer Society and/or the Society of Plastics Engineers. 

14. All documents and materials that formed the basis of your nominations and/or 

awards from the BioEnvironmental Polymer Society, including, but not limited to, the 2008 Jim 

Hammar Memorial Service Award.

15. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

16. All correspondence with Dr. Ramani Narayan.

17. All correspondence with any employee or contracting employee of O.W.S., Inc. 

related to biodegradable plastics.

18. All correspondence with any employee and/or representative of the Federal Trade 

Commission concerning biodegradable plastics.

19. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case.

20. All documents revealing shares of stock or ownership interests held by you in any 

company. 

21. All documents revealing consultant positions, executive or corporate positions, or 

financial arrangements between you and any company, university, or other financial institution 

concerning work or employment related to biodegradable plastics or polymers. 

22. All correspondence between you and any private company concerning plastics, 

biodegradation, ECM BioFilms, and any other company involved in the manufacture of 

biodegradable products. 

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23. All documents and correspondence between you and the authors of the article 

Gómez, EF, Michel Jr., FC. “Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and long-term soil incubation” Polymer 

Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

24. Copies of all scientific publications concerning biodegradable and/or compostable 

polymers that you have authored.

25. Copies of all papers and/or presentations concerning biodegradable and/or 

compostable plastics that you have delivered or presented. 

26. All documents revealing awards, bonuses, stock options, or other accolades 

bestowed upon you and all correspondence associated with each, for work you performed with 

biodegradable polymers. 

27. All conflict of interest forms or agreements completed or signed by you. 

28. All documents concerning ASTM, including, but not limited to, correspondence 

in which you presented a proposal, voted on a proposal, or opposed a proposal then undergoing 

active consideration by the ASTM. 

29. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and deposition, hearing and trial 

transcripts involving you from that proceeding along with all orders issued by the courts in those 

proceedings.

30. Regardless of the date, if you have ever served as an expert in any other 

proceeding, copies of all expert reports and testimony given by you in those proceedings. 

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INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the University of Massachusetts, Lowell

who have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

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Exh. RX-A-1

PUBLIC DOCUMENT
 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

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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. 

) 

) 

) 

) 

) 

) 

) 

DOCKETNO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3l(d). Pursuant to Commission Rule 3.3l(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

Date: October 22, 2013 
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PUBLIC DOCUMENT

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy ofthis Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 
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PUBLIC DOCUMENT

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions ofthe document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL - FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 
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Exh. RX-A-1

PUBLIC DOCUMENT

1 0. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11 . If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability ofRule 4.11(e) ofthe Commission's 

Rules of Practice, 16 CFR 4.11 (e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

4 
RESPONDENT 

EXHIBIT 

RX-A-2 

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Exh. RX-A-2

PUBLIC DOCUMENT
April 7, 2014 

VIA UPS

Dr. Thabet Tolaymet PhD 

Environmental Protection Agency 

26 Martin Luther King Drive

Cincinnati, OH 45268 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Dr. Tolaymet: 

 Pursuant to the Federal Trade Commission’s Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.’s subpoena duces tecum. This subpoena requests that you 

produce documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter.

 Please provide all requested documents no later than April 25, 2014. We welcome you to 

contact us with questions.

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

 Lou F. Caputo 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

(602) 388-8899 | FAX (602) 393-4361

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

(202) 466-6937 | FAX (202) 466-6938

Lou F. Caputo, Esq.

602.388.8901

lcaputo@emord.com

A Professional Corporation

WASHINGTON | VIRGINIA | PHOENIX

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PUBLIC DOCUMENT
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PUBLIC DOCUMENT

SUBPOENA DUCES TECUM 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

Dr. Thabet Tolaymet 

Environmental Protection Agency 

26 Martin Luther King Drive 

Cincinnati, OH 45268 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 

Emard & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

6. SUBJECT OF PROCEEDING 

4. MATERIAL WILL BE PRODUCED TO 

Peter Arhangelsky 

5. DATE AND TIME OF PRODUCTION 

April 25, 2014, 5:00PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

7. MATERIAL TOBEPRODUCED 

See Attached Schedule A for description of all documents and materials. 

8. ADMINISTRATIVE LAW JUDGE 

Chief Administrative Law Judge 

D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Jonathan W. Emard, Peter Arhangelsky, Lou 

Caputo 

Emard & Associates, P.C. for Respondent, 

ECM BioFilms, Inc. 

DATE SIGNED UNSEL ISSUING SUBPOENA 

April 7, 2014 ~ 

APPEARANCE 

The delivery of this subpoena to you by any method 

prescribed by the Commission's Rules of Practice is 

legal service and may subject you to a penalty 

imposed by law for failure to comply. 

MOTION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any 

motion to limit or quash this subpoena must comply with 

Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), and In 

particular must be filed within the earlier of 10 days after 

service or the time for compliance. The original and ten 

copies of the petition must be filed before the 

Administrative Law Judge and with the Secretary of the 

Commission, accompanied by an affidavit of service of 

the document upon counsel Usted in Item 9, and upon all 

other parties prescribed by the Rules of Practice. 

FTC Form 70-E (rev. 1197} 

TRAVEL EXPENSES 

The Commission's Rules of Practice require that fees and 

mileage be paid by the party that requested your appearance. 

You should present your claim to counsel listed in Item 9 for 

payment If you are permanenUy or temporarily living 

somewhere other than the address on this subpoena and it 

would require excessive travel for you to appear, you must get 

prior approval from counsel listed in Item 9. 

A copy of the Commission's Rules of Practice is available 

online at http:/lbit.ly/FTCRulesofPractice. Paper copies are 

available upon request 

This subpoena does nol require approval by OMS under 

the Paperwork Reduction Act of 1980. 
SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. THABET TOLAYMET

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

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Exh. RX-A-2

PUBLIC DOCUMENT
an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena.

Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT
M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents that concern ECM BioFilms, Inc., any past and present employee 

or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. 

3. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT
4. All correspondence with Dr. Ramani Narayan. 

5. All correspondence with any employee or contracting employee of O.W.S., Inc. 

6. All correspondence between you and any member, employee, representative, or 

officer of the United States Federal Trade Commission.

7. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case.

8. All documents revealing shares of stock or ownership interests held by you in any 

company. 

9. Regardless of the date, copies of all papers, articles, and publications authored or 

co-authored by you that concern municipal solid waste landfills, bioreactor landfills, waste 

containment performance, construction and demolition waste landfills, transport of 

environmental pollutants, and biodegradable products, and/or that may help form your opinions 

and conclusions in this case.

10. Regardless of the date, all correspondence between you and Dr. Morton Barlaz.

11. Regardless of the date, all conflict of interest forms or agreements signed by you. 

12. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and deposition, hearing and trial 

transcripts involving you from that proceeding along with all orders issued by the courts in those 

proceedings.

13. Regardless of the date, if you have ever served as an expert in any other 

proceeding, copies of all expert reports and testimony given by you in those proceedings. 

Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT
INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the Environmental Protection Agency who 

have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT
 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT
Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT

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. 

) 

) 

) 

) 

) 

) 

) 

DOCKETNO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3l(d). Pursuant to Commission Rule 3.3l(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

Date: October 22, 2013 
Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy ofthis Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 
Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions ofthe document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL - FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 
Resp. Mot. for Leave 

Exh. RX-A-2

PUBLIC DOCUMENT

1 0. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11 . If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability ofRule 4.11(e) ofthe Commission's 

Rules of Practice, 16 CFR 4.11 (e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

4 
RESPONDENT 

EXHIBIT 

RX-A-3 

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
April 7, 2014 

VIA UPS

Dr. Shane Frederick, PhD

Yale University

Yale School of Management

52 Hillhouse Ave, Room 116 

New Haven, CT 06511 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Dr. Frederick: 

 Pursuant to the Federal Trade Commission’s Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.’s subpoena duces tecum. This subpoena requests that you 

produce documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy of the Protective Order 

issued in this matter.

 Please provide all requested documents no later than April 25, 2014. We welcome you to 

contact us with questions.

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

 Lou F. Caputo 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

(602) 388-8899 | FAX (602) 393-4361

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

(202) 466-6937 | FAX (202) 466-6938

Lou F. Caputo, Esq.

602.388.8901

lcaputo@emord.com

A Professional Corporation

WASHINGTON | VIRGINIA | PHOENIX

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT

SUBPOENA DUCES TECUM 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b){2010) 

Dr. Shane Frederick 

Yale University 

Yale School of Management 

52 Hillhouse Ave, Room 116 

New Haven, CT 06511 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 

Emard & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

6. SUBJECT OF PROCEEDING 

4. MATERIAL WILL BE PRODUCED TO 

Peter Arhangelsky 

5. DATE AND TIME OF PRODUCTION 

April 25, 2014, 5:00PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

7. MATERIAL TO BE PRODUCED 

See Attached Schedule A for description of all documents and materials. 

8. ADMINISTRATIVE LAW JUDGE 

Chief Administrative Law Judge 

D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

DATE SIGNED 

April 7, 2014 

APPEARANCE 

The delivery of this subpoena to you by any method 

prescribed by the Commission's Rules of Practice is 

legal service and may subject you to a penalty 

imposed by law for failure to comply. 

MOTION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any 

motion to limit or quash this subpoena must comply with 

Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), and 1n 

particular must be filed within the earlier of 10 days after 

service or the time for compliance. The original and ten 

copies of the petition must be filed before the 

Administrative Law Judge and with the Secretary of the 

Commission, accompanied by an affidavit of service of 

the document upon counsel listed in Item 9, and upon all 

other parties prescribed by the Rules of Practice. 

FTC Form 70-E (rev. 1/97) 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Jonathan W. Emard, Peter Arhangelsky, Lou 

Caputo 

Emard & Associates, P.C. for Respondent, 

ECM BioFilms, Inc. 

TRAVEL EXPENSES 

The Commission's Rules of Practice require that fees and 

mileage be paid by the party that requested your appearance. 

You should present your claim to counsel listed in Item 9 for 

payment. If you are permanently or temporarily living 

somewhere other than the address on this subpoena and it 

would require excessive travel for you to appear, you must get 

prior approval from counsel listed in Item 9. 

A copy of the Commission's Rules of Practice is available 

online at http://bit lylfTCRulesofPractjce. Paper copies are 

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 
SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. SHANE FREDERICK

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena.

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents that concern ECM BioFilms, Inc., any past and present employee 

or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. 

3. Regardless of the date, all contracts, retainers, and/or agreements with Yale 

University. 

1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
4. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

5. All correspondence with Dr. Ramani Narayan. 

6. All correspondence with any employee or contracting employee of O.W.S., Inc. 

7. All correspondence with the American Chemistry Council.

8. All correspondence with APCO Insight. 

9. All correspondence between you and any member, employee, representative, or 

officer of the United States Federal Trade Commission.

10. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case.

11. All documents revealing shares of stock or ownership interests held by you in any 

company. 

12. All documents revealing consultant positions, executive or corporate positions, or 

financial arrangements between you and any company, university, or other financial institution 

concerning work or employment related to consumer perception. 

13. Since January 1, 1999, copies of all papers, articles, dissertations, and 

publications authored by you that concern consumer perception and/or that may help form your 

opinions and conclusions in this case.

14. All conflict of interest forms or agreements signed by you. 

15. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and deposition, hearing and trial 

transcripts involving you from that proceeding along with all orders issued by the courts in those 

proceedings.

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
16. Regardless of the date, if you have ever served as an expert in any other 

proceeding, copies of all expert reports and testimony given by you in those proceedings. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of Yale University who have knowledge of 

such matters, can authenticate the documents and materials produced, and 

who can testify to such matters.

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
[Signature of party executing the declaration]

 Respectfully submitted,

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT
Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT

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. 

) 

) 

) 

) 

) 

) 

) 

DOCKETNO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3l(d). Pursuant to Commission Rule 3.3l(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

Date: October 22, 2013 
Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy ofthis Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 
Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions ofthe document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL - FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 
Resp. Mot. for Leave 

Exh. RX-A-3

PUBLIC DOCUMENT

1 0. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11 . If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability ofRule 4.11(e) ofthe Commission's 

Rules of Practice, 16 CFR 4.11 (e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

4 
RESPONDENT 

EXHIBIT 

RX-B-1 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. STEPHEN MCCARTHY

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents received or possessed before you were engaged as an expert 

(consulting or testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past 

and present employee or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. Production of all 

1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to, emails, 

documents appended to emails, reports and any other written or electronic document of any kind 

that is communicated from the subpoena recipient or its agents to any and all other persons and 

entities. 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
responsive materials should be submitted in accordance with the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this matter. 

3. All contracts, retainers, or engagement letters between you and any public or 

private firm that manufactures and/or produces biodegradable and/or compostable products. 

4. All reports, analyses, assessments, tests, data, summaries, and conclusions issued 

to any public or private firm that manufactures and/or produces biodegradable and/or 

compostable products concerning the biodegradability of plastics manufactured by those 

companies.

5. All correspondence between you and any firm that manufactures and/or produces 

a product or substance in competition generally with other biodegradable plastic products (to wit, 

ECM’s additive) concerning the biodegradability of plastics manufactured with plastic additives. 

6. All correspondence and sections of contracts, retainers, and/or agreements with 

the University of Massachusetts, Lowell (“Umass”) concerning funding (including research 

grants) of research related to biodegradable plastics or polymers. 

7. All your pending or existing patents that involve or relate to plastics and or 

biodegradable and compostable substances, products, and technologies, including those patents 

for which you are the assignor. 

8. All licensing or royalty agreements involving or concerning patents identified 

supra in response to Request 7, and all such agreements involving intellectual property related to 

biodegradable and compostable products. 

9. Copies of all contracts, grant documents (including proposals) for the following 

research projects you were involved in: 

a. Metabolix, “Development of Novel of Biodegradable Materials, $1,500,196 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
b. NSF Center for Biodegradable Polymer Research, $1,200,000 Industrial Members 

(8/93-present), Principal Investigator 

c. Polymer Degradation Research Center, $475,000, Industrial Members (8/89-8/93) 

d. Digital, “Plastics Materials Research”, $458,706

e. Metabolix Inc., Performance of PHA Derived Chemicals and Polyols in 

Polyurethane, $141,465 

f. 3M, “Composting Research”, $155,000 

g. Warner Lambert, “Biodegradable Polymer Research”, $116,591 

h. National Science Foundation, “Biodegradable Polymer Research Center”, 

$110,000 (8/93-8/95) 

i. Department of the Army, “Polymer Degradation Research”, $104,000 

j. Institute for Plastics Innovation, “Injection Molding Research”, $75,000 

k. Massachusetts Centers of Excellence, “Institute for Plastics Innovation”, $75,000 

l. Metabolix Inc., Performance of Polyhydroxyalkanote Derived Chemicals and 

Polyols in Polyurethane, $71,465 

m. Battelle, “Biodegradable Packaging Development”, $59,865 

n. DuPont Corian, $50,000 

o. Invista, “Evaluation of Plasticizers”, $ 28,000 

p. Massachusetts Centers of Excellence, “Polymer Degradation Research”, $25,000

10. All documents concerning any testing or product evaluations involving 

biodegradable and/or compostable plastics in which you participated on behalf of, or as a 

member of, the BioEnvironmental Polymer Society and/or the Society of Plastics Engineers. 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
11. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

12. All correspondence with Dr. Ramani Narayan. 

13. All correspondence with any employee or contracting employee of O.W.S., Inc. 

related to biodegradable plastics.

14. All correspondence (not subject to attorney client or work-product privilege and 

received before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics.

15. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

16. All documents revealing shares of stock or ownership interests held by you in any 

company that sells, manufactures, or markets plastics, biodegradable technologies, and/or 

compostable technologies. 

17. A listing of all consultant, executive, or corporate positions you held concerning 

work or employment related to the biodegradability of plastics over the past ten years. 

18. All documents and correspondence between you and the authors of the article 

Gómez, EF, Michel Jr., FC. “Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and long-term soil incubation” Polymer 

Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
19. Copies of all scientific publications, papers, or presentations that you authored 

concerning the rate or extent of biodegradable (including compostable) polymers when measured 

in a laboratory environment or in situ. 

20. All conflict of interest forms or agreements completed or signed by you in 

association with your work at the Umass, or as a testifying witness in this case.

21. All documents concerning ASTM, including correspondence, in which you 

presented a proposal, voted on a proposal, or opposed a proposal concerning biodegradable 

plastics standards or test methods. 

22. If you have ever served as an expert in any other proceeding involving the Federal 

Trade Commission, copies of all expert reports and testimony given by you in those proceedings. 

Production of all responsive materials should be submitted in accordance with the Commission’s 

Rules of Practice and the ALJ’s Scheduling Order in this matter. 

23. If you have ever served as an expert in any other legal proceeding involving 

plastics technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance with the 

Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the University of Massachusetts, Lowell

who have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. for Leave 

Exh. RX-B-1

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-B-2 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. THABET TOLAYMET

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents received or possessed before engagement as an expert (consulting 

or testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and present 

employee or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. Production of all 

1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
responsive materials should be submitted in accordance with the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this matter. 

3. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

4. All correspondence with Dr. Ramani Narayan.

5. All correspondence with any employee or contracting employee of O.W.S., Inc. 

related to biodegradable plastics.

6. All correspondence (not subject to attorney client or work-product privilege and 

received before engagement as an expert in FTC Docket No. 9358) between you and any 

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

7. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

8. A listing of all shares of stock or ownership interests held by you in any company 

associated with plastics, biodegradable products or technologies, and/or compostable products or 

technologies. 

9. Copies of all papers, articles, and publications that you authored or co-authored

concerning the rates of biodegradation of landfilled waste, including municipal solid waste 

landfills, bioreactor landfills, and commercial composters.

10. Copies of all papers, articles, and publications that you authored or co-authored 

concerning the anaerobic or aerobic biodegradability of plastic polymers. 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
11. All correspondence between you and Dr. Morton Barlaz concerning rates of 

biodegradation in landfills. 

12. All conflict of interest forms or agreements signed by you in association with 

your employment with the Environmental Protection Agency, or in association with this case. 

13. If you have ever served as an expert in any other proceeding involving the Federal 

Trade Commission, copies of all expert reports and testimony given by you in those proceedings. 

Production of all responsive materials should be submitted in accordance with the Commission’s 

Rules of Practice and the ALJ’s Scheduling Order in this matter. 

14. If you have ever served as an expert in any other legal proceeding involving 

environmental claims or technologies, produce copies of all expert reports and testimony given 

by you in those proceedings. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of the Environmental Protection Agency who 

have knowledge of such matters, can authenticate the documents and 

materials produced, and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration] 

2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
 Respectfully submitted,

 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. for Leave 

Exh. RX-B-2

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-B-3 

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
SCHEDULE “A” TO SUBPOENA DUCES TECUM DIRECTED TO 

DR. SHANE FREDERICK

INSTRUCTIONS

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein.

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments.

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique “Bates” document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. Documents that were responsive to, and produced in accordance with, the original subpoena 

duces tecum sent to you on February 13, 2014 need not be submitted again. However, your 

supplemental response should indicate, for each document s previously submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

H. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

I. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

J. The Federal Trade Commission’s Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

K. The Federal Trade Commission’s Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

L. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ¶4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
M. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item’s type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED

Please produce the original or copies of the following documents (the term ”documents” 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents received or possessed before engagement as an expert (consulting 

or testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and present 

employee or principal of ECM, and/or the ECM additive. 

2. All documents, materials, correspondence, forms, marketing material, and testing 

used or referenced to form any and all opinions you may offer in this case. Production of all 

1 The term “correspondence” is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
responsive materials should be submitted in accordance with the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this matter. 

3. Regardless of the date, all sections of contracts, retainers, and/or agreements with 

Yale University concerning conflicts of interest and/or supplemental employment (such as 

consultation services in litigation).

4. All correspondence with any employee and/or consultant of the Biodegradable 

Products Institute (“BPI”). 

5. All correspondence with Dr. Ramani Narayan. 

6. All correspondence (not subject to attorney client or work-product privilege and 

exchanged before engagement as an expert in FTC Docket No. 9358) between you and any 

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

7. All correspondence with any witness, person, and/or consultant used to help form 

any opinion you have in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this 

matter.

8. A listing of all shares of stock or ownership interests held by you in any company

associated with plastics, biodegradable products or technologies, and/or compostable products or 

technologies. 

9. All documents, including papers, articles, dissertations, and publications that you 

authored, co-authored, or contributed to that concerned work related to marketing research 

(including consumer perception) of trade consumers, e.g., corporate entities, distributors, 

wholesalers, etc., as opposed to end-consumers.

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
10. Since January 1, 1999, copies of all papers, articles, dissertations, and 

publications authored by you that concern consumer perception that may help form your 

opinions and conclusions in this case. Production of all responsive materials should be 

submitted in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling 

Order in this matter.

11. All conflict of interest forms or agreements signed by you. 

12. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and transcripts (deposition, hearing and 

trial) involving you in your professional capacity, along with all orders issued by the courts in 

those proceedings. 

13. If you have ever served as an expert in any other proceeding involving the Federal 

Trade Commission, copies of all expert reports and testimony given by you in those proceedings. 

Production of all responsive materials should be submitted in accordance with the Commission’s 

Rules of Practice and the ALJ’s Scheduling Order in this matter.

14. If you have ever served as an expert in any other legal proceeding involving 

environmental claims, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance with the 

Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents2, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of Yale University who have knowledge of 

such matters, can authenticate the documents and materials produced, and 

who can testify to such matters.

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states:

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date].

[Signature of party executing the declaration]

 Respectfully submitted,

2

 “Document” and “documents” as used in this Attachment are defined in this subpoena’s 

“Description of Documents Requested” section. 

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
 /s/ Jonathan W. Emord____

 Jonathan W. Emord, Esq. 

 EMORD & ASSOCIATES, P.C.

 11808 Wolf Rune Lane 

 Clifton, VA 20124 

 Ph: 202-466-6937 

 Fx: 202-466-6938 

 Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

Resp. Mot. for Leave 

Exh. RX-B-3

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-C 

Resp. Mot. for Leave 

Exh. RX-C

PUBLIC DOCUMENT
From: Cohen, Jonathan

To: Lou Caputo; Jonathan Emord; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Docket No. 9358, Subpoenas Duces Tecum

Date: Monday, April 07, 2014 4:48:25 PM

Lou,

            Your prior email does not state that your “subpoenas are to be dispatched today.” 

Rather, you wrote:  “Please find the attached subpoenas duces tecum dispatched today.” 

Obviously, we can’t accept service of subpoenas you already sent to our experts via Federal

Express.  If, in fact, the subpoenas were not “dispatched today,” but are merely scheduled to be

dispatched, then yes, we will accept service on our experts’ behalf. 

            I note that this acceptance reserves all rights other than the right to object to the

subpoenas based on their service. 

            We’ll give you a call tomorrow at 4:30 EST to discuss our objections. 

 

Jonathan Cohen

Enforcement Division |  Bureau of Consumer Protection |  Federal Trade Commission 

600 Pennsylvania Avenue, N.W., M-8102B  Washington, D.C.  20580 

(202) 326-2551  | jcohen2@ftc.gov  

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, April 07, 2014 7:28 PM

To: Cohen, Jonathan; Jonathan Emord; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Docket No. 9358, Subpoenas Duces Tecum

Jonathan,

We assume by your comments that Complaint Counsel will accept service on behalf of Drs.

McCarthy, Tolaymet, and Frederick.  Please confirm.  As previously stated, our subpoenas are to be

dispatched today.   If you are stating that Complaint Counsel will not accept service of a subpoena

on behalf of its own experts, please inform us of this immediately.  Further, subpoenas to retained

experts are permissible. See All W. Pet Supply Co. v. Hill's Pet Products Div., Colgate-Palmolive Co.,

152 F.R.D. 634, 639 (D. Kan. 1993) (“With regard to nonparties such as plaintiff's expert witness, a

request for documents may be made by subpoena duces tecum pursuant to Rule 45”); Expeditors

Int'l of Washington, Inc. v. Vastera, Inc., 04 C 0321, 2004 WL 406999 (N.D. Ill. Feb. 26, 2004)

(rejecting blanket prohibition of subpoenas to retained experts under Marsh v. Jackson). 

Please confirm whether you will accept service.  We are available for a call to hear more of your

position tomorrow after 3:00 PM EST.

Thank you,

Lou

Resp. Mot. for Leave 

Exh. RX-C

PUBLIC DOCUMENT
Lou Caputo | EMORD & ASSOcIaTeS, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (6

388-8901 | Facsimile: (602) 393-4361 | www.emord.com

NOTICE: This is a confidential communication intended for the recipient listed above. The content of this communication

is protected from disclosure by the attorney-client privilege and the work product doctrine. If you are not the intended

recipient, you should treat this communication as strictly confidential and provide it to the person intended. Duplication or

distribution of this communication is prohibited by the sender. If this communication has been sent to you in error, please

notify the sender and then immediately destroy the document.

From: Cohen, Jonathan [mailto:jcohen2@ftc.gov] 

Sent: Monday, April 07, 2014 3:00 PM

To: Lou Caputo; Jonathan Emord; Peter Arhangelsky

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Docket No. 9358, Subpoenas Duces Tecum

Counsel,

            These subpoenas to our experts are grossly improper.  Both the FRCP Commentary and

case law make plain that you cannot subpoena experts directly, and nothing in FTC Rule 3.34

suggests otherwise.  See, e.g., FRCP 45, 1991 Amendment, Subsection (c) Advisory Committee

Notes; Marsh v. Jackson, 141 F.R.D. 431, 432 (W.D. Va. 1992) (mag. op.). 

            Please withdraw these subpoenas and re-submit your proposed discovery as document

requests directed to Complaint Counsel.  We will then respond or object accordingly. 

            Alternatively, if you will not withdraw the subpoenas, please provide us with times

tomorrow afternoon when you are available to meet and confer. 

Jonathan Cohen

Enforcement Division |  Bureau of Consumer Protection |  Federal Trade Commission 

600 Pennsylvania Avenue, N.W., M-8102B  Washington, D.C.  20580 

(202) 326-2551  | jcohen2@ftc.gov  

From: Lou Caputo [mailto:LCaputo@emord.com] 

Sent: Monday, April 07, 2014 4:59 PM

To: Johnson, Katherine

Cc: Jillson, Elisa; Cohen, Jonathan; Jonathan Emord; Peter Arhangelsky

Subject: Docket No. 9358, Subpoenas Duces Tecum

Counsel,

Please find the attached subpoenas duces tecum dispatched today.

Thank you,

Lou Caputo | EMORD & ASSOcIaTeS, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (6

388-8901 | Facsimile: (602) 393-4361 | www.emord.com

Resp. Mot. for Leave 

Exh. RX-C

PUBLIC DOCUMENT
NOTICE: This is a confidential communication intended for the recipient listed above. The content of this communication

is protected from disclosure by the attorney-client privilege and the work product doctrine. If you are not the intended

recipient, you should treat this communication as strictly confidential and provide it to the person intended. Duplication or

distribution of this communication is prohibited by the sender. If this communication has been sent to you in error, please

notify the sender and then immediately destroy the document.

Resp. Mot. for Leave 

Exh. RX-C

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-D 

Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT
Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT

United States of America 

FEDERAL TRADE COMMISSION 

Katherine Johnson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2185; kjohnson@ftc.gov 

Jonathan Cohen 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2551; jcohen2@ftc.gov 

VIA ELECTRONIC MAIL 

Jonathan W. Emord 

Emord &Associates, P.C 

11808 Wolf Run Lane 

Clllton, \TJ\ 20124 

J\pril11, 2014 

Elisa Jillson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-3001; ejillson@ftc.gov 

Peter J\rhangelsky 

Lou Caputo 

Bethany R Kennedy 

Emord &Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

RE: In theMatterofECM BioFilms, Inc., No. 9358 

Expert Discovery 

OJunsel, 

We write on behalf of Complaint CounseL as well as our three experts whom you 

attempted to serve with subpoenas (Dr. Shane Frederick, Dr. Steven McCarthy, and Dr. 

Thabet Tolayrnet). We appreciate your willingness to allow Complaint Counsel to accept 

service on their behalf (although, as discussed below, the manner in which the attempted 

service developed raises questions).1 We also appreciate your willingness to meet and confer 

regarding the issues the subpoenas raise. As we promised we would do, we outline herein 

what information we will provide, why, and under what circumstances. We failed to 

persuade you on Tuesday to commit to any sort of response; accordingly, you are not 

obligated to provide any basis for even the broadest of your requests, or to respond to this 

1 As we previously stated, other than the right to contest service, we reserve all other 

rights to object to these subpoenas. Reserved objections include, without limitation, the 

right to object on grounds that the subpoenas lack the Commission's seal. 
Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT

Emord & Associates, P.C. 

In the Matter of ECM BioFilms, Inc., No. 9358 

Page 2 

letter otherwise. However, we genuinely hope that you will do so, as dialogue concerning 

these issues could help avoid litigating them. 

To begin, the parties substantially disagree concerning the propriety of your attempt 

to subpoena our experts directly. Complaint Counsel engaged them and they serve as our 

agents for purposes of this litigation. From an agency law perspective, they are not 

materially distinct from part-time employees ECM might engage. We would not 

communicate with such employees directly even if we had an arguable ethical basis to do so, 

and we will treat ECM's other agents (including its experts) with the same courtesy.2 

Furthermore, the parties substantially disagree concerning the propriety of your 

decision to issue third-party subpoenas seeking expert-related information rather than 

obtaining this information (1) through our mandatory expert disclosures; (2) by deposing our 

experts; or (3) through discovery issued to Complaint Counsel. As we discussed, there is 

conflicting case law,3 but the Court has adopted the majority view supporting our position.4 

2 Probably to our prejudice, we kept our promise to give ECM reasonable notice 

before serving any of its customers, so that ECM could communicate with those customers 

before they received our subpoenas. This type of courtesy should run in both directions. 

3 Most courts hold that FRCP 26(b)(4) (analogous to FTC Rule 3.31A) limits parties' 

ability to issue subpoenas duces tecum to testifying e?qJ~rts. Compare In re Fuller, No. 2:13-mc140, 2013 WL 5305317, *2 (D. Me. Sept. 8, 2013) ("The Rules Committee's comment to the 

1991 amendment of Rule 45 states clearlythat the rule 'does not applyto the e~ert retained 

by a party, whose information is subject to the provisions of Rule 26(b)(4)."'J; Ambrose v. 

Southworth Prods. Corp., No. 95-0048, 1997 WL 470359, ·~1 (W.D. Va. June 24, 1997) 

(quashing subpoena duces tecum issued to testifying expert); Perry v. United States, No. 96-CV2038, 1997 WL 53136, *1 (N.D. Tex. Feb. 4, 1997) ("A party may not circumvent the 

limitations of Rule 26 and gam access to opposing expert evidence via a bare subpoena duces 

tecum."); Greer v. Anglemryer, No. 3:93-CV-649, 1996 WL 56557, *2 (N.D. Ind. Jan. 5, 1996) 

("Dr. Barclay may not use a Rule 45 subpoena to obtain Dr. Land's records because Rule 

26(b)(4) limits hiS right of access to those records."); Hariford Fire Ins. Co. v. Pure Air on the 

Lake Ltd. P'Ship, 154 F.RD. 202, 208 (N.D. Ind. 1993) ("~ule 45 of the Federal Rules of 

Civil Procedure cannot be utilized for obtaining an expert's files where Rule 26(b)(4) remains 

the limitation on discoverability.") (citation omitted); Quaile v. Carol Cable Co., No. 90-7415, 

1992 WL 277981, *2 (E.D. Pa. Oct. 5, 1992) ("It is also recognized that a subpoena under 

Fed. R Civ. P. 45, with respect to experts expected to be called at trial, is limited by Fed. R 

Civ. P. 26.") (citation Oillltted); Marsh v. Jackson, 141 F.RD. 431, 432 (W.D. Va. 1992) 

("[T]he court concludes that RUle 26(b)(4) remains a limitation on the right of access by an 

opposing party to the evidence of eXJ?erts who have been retained to testify in the case, and 

tl:iat the discovery of the facts and opmions of those eXJ?erts cannot obtain solely under Rule 

45 where, as here, a bare subpoena duces tecum has ISsued for the experts' files."), with 

Expeditors Int'l of Wash., Inc. v. V astera, Inc., No. 04 C 0321, 2004 WL 406999 (N.D. Ill. 2004), 

Western Resources, Inc. v. Union Pac. R Co., No. 00-2043, 2002 WL 1822428, *3 (D. Kan. Jufy 

23, 2002) (mag. op.). Although the leading case, Marsh v. Jackson, was decided in 1992, 

"Marsh continues to be good law." Schwarz & Schwarz of Virginia, LLC. v. Certain 

Underwriters at Llqyd's London, No. 6:07cv00042, 2009 WL 1043929, 5 n.13 (W.D. Va. Apr. 17, 

2009); see also Newcomb v. Principal Mut. Lift_ Ins. Co., No. 07-cv-345, 2008 WL 3539520, 3 

(W.D.N.C. Aug. 11, 2008) (finding Marsh "highlypersuasive"). 
Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT

Emord &Associates, P.C. 

In the Matter rifECM BioFilms, Inc., No. 9358 

Page 3 

Specifically, discovery from testifying experts "beyond that permitted by the [FTC] Rules, 

the Scheduling Order, and the Dura Lube case" 5 is not permitted unless ECM 

"demonstrate[s] a need" for that discovery.6 Rule 3.31A, the Scheduling Order, and Dura 

Lube authorize the following discovery from testifying experts: 

(1) "[A]ll documents reviewed, consulted, or examined by the expert in 

connection with forming his or her opinion on the subject on which 

he or she is expected to testify, regardless of the source of the 

document or whether a document was originally generated in another 

investigation or litigation against another [party]" { 

(2) "While reports and testimony, including deposition testimony, from 

prior investigations or litigation must be produced, the documents 

underlying such reports or testimony are not discoverable ... unless 

such documents were also relied upon or reviewed by a testifying 

expert in formulating an opinion in this case" ;

8 

(3) Communications "[r]elated to compensation for the expert's study or 

testimony' ;

9 

(4) Communications that "[i]dentify facts or data that the other partfs 

attorney provided and that the exper;t considered in forming the 

opinions to be expressed" ;10 and 

(5) Communications that "[i]dentify assumptions that the other partfs 

attorney provided and that the expert relied on in forming the 

opinions to be expressed." 11 

4 See In the Matter of Basic Research, No. 9318, 2004 FTC LEXIS 237, '~9 (F.T.C. Dec. 9, 

2004) (granting motion for protective order after respondent subpoenaed two of complaint 

counsel's experts when that discovery exceeded that permitted by the FTC's Rules, the 

applicable scheduling order, and In re Dura Lube, No. 9292, 1999 FTC LEXIS 254 (F.TC. 

Dec. 15, 1999). Altliough the FTC amended its rules concerning expert discovery after Dura 

Lube and Basic Research, No. 9318, 2004 FTC LEXIS 237 (F.T.C. Dec. 9, 2004), those 

amendments largely codified Dura Lube and Basic Research, at least with respect to testifying 

experts such as those at issue here. 

5 See Dura Lube, 1999 FTC LEXIS 254. 

6 See Basic Research, 2004 FTC LEXIS at *9. 

7 Id. at *7 (citing Dura Lube, 1999 FTC LBXIS 254, at *6-*7). 

8 Id. at *8 (citing Dura Lube, 1999 FTC LEXIS 254, at'~). 

9 Rule 3.31A(e)(~. 

10 Id. at (e)(ll). 
Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT

Emord &Associates, P.C. 

In the Matter ofECM BioFilms, Inc., No. 9358 

Page4 

ECM has not "demonstrated a need" 12 for anything beyond these five categones of 

information. 

That said, we will adopt the following approach. First, we commit to provide you 

the information Ru1e 3.31A, Dura Lube, and the Schedu1ing Order requires that we disclose. 

We will make those disclosures either when the Schedu1ing Order requires or at a mutuallyagreed earlier time. Second, we previously discussed our request for information regarding 

Dr. David Stewart, whom ECM apparently engaged. Specifically, we agreed to provide you 

with the best list we can reasonably create of those prior FTC cases in which Dr. Stewart 

served as an expert, and you agreed that you wou1d provide us with a list of those prior FTC 

cases in which Dr. Stewart recalls working as an expert. We will give you our list no later 

than next Friday, and we hope that you will give us yours either next Friday or within a 

reasonable time thereafter. We view this compromise as satisfying the first RFPD we issued 

onMarch21. 

Third, our April 7 RFPD (No. 6) asked for information concerning Dr. Morton 

Barlaz's role as a fact witness. Specifically, we asked for documents within Dr. Barlaz's 

control regarding ECM Plastic or the ECM Additive, including Documents "prepared for, 

authored by [or] sent to or from" Dr. Barlaz, and "all studies, reports or analyses of ECM 

Plastic and/ or the ECM Additive conducted or prepared" by Dr. Barlaz. If you produce 

responsive ipformation along with Dr. Barlaz's expert report, then we will agree to produce 

the same information with respect to Dr. Tolaymet.13 

Fourth, assuming that you agree to produce the same information regarding each of 

your experts along with their reports, we will respond to the following additional requests in 

your subpoenas when our experts' reports are due: 

• Request No. 1: "All documents that concern ECM Biofilms, Inc., and any 

(To all three experts) ~(:kan.f~ti~e~; employee or principal of ECM, and/ or the 

• Requ~st No. 2: 

(To all three experts) 

"All documents, materials, correspondence, forms, 

marketing_ material, and testing used or referenced to form 

any and all opinions you may offer in this case." 

11 Id. at (e)(ill). To the extent Schedu1ing Order § 19 is narrower than these 

provisions, we would agree to produce the material ((1)-(5) above) subject to ECM's 

agreement to do the same. 

12 See Basic Research, 2004 FTC LEXIS at *9. 

13 · Or, if you agree to produce responsive information with respect to all three of 

your scientific experts (Drs. Barlaz, Ranajit Sahu, and Ryan Burnette), tlien we will agree to 

produce responsive information with respect to both of our scientific experts (Drs. 

Tolaymet and McCarth:>J. 
Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT

Emord &Associates, P.C. 

In the Matter ofECM BioFi!ms, Inc., No. 9358 

Page 5 

• Request No. 10: 

(To all three experts) 

• Request No. 16: 

(To all three experts) 

• Request No. 23: 

(To Dr. McCarthY} 

"All correspondence with any witness, person, and/ or 

consultant used to help form any opinion you have in tips 

case." 14 

"Regardless of the date, if you have ever served as an 

expert in any other proceedirig, copies of all expert reports 

ana testimony given byyou in those proceedings." 15 

"All documents and correspondence between you and the 

authors of the article G6mes, EF, Michel Jr., FC. 

"Biodegradability of Conventional and bio-basecf plastics 

and natural fiber composites during compositing, anaerobic 

digesting and long-term soil mcubation." Polymer 

Degradation and Stability. Vol. 92 (December 2013): 2583-

2591. 

As the above proposals indicate, we are prepared to exchange quite a bit of 

information regarding the parties' experts, including iirformation specific to ECI\11 Plastic and 

information aoout tlieir role in prior cases. However, we draw the line at the many other 

irrelevant, overbroad, and intrusive requests ECI\11 issued. Although we are reluctant to 

characterize them as intended solely to h:arass, many are hard to understand otherwise: 

• 

• 

• 

Request No. 29 to Dr. McCarthy covers papers filed in divorce proceedings 

and child custody disputes;16 

Request No. 3 to Dr. Frederick seeks the agreements with Yale University 

(his employer) governing his tenure, teaching obligations, and research 

requirements, ana other agreements concerning his duties and benefits as a 

professor;17 

Request No. 8 to Dr. Tolaymet seeks information regarding his 401k, other 

retirement funds, and other ~ersonal financial interests Dr. Tolaymat may 

hold in mutual or index funds; 8 

14 This appears as Request No. 7 to Dr. Thabet and Request No. 19 to Dr. 

McCarthy. 

15 This appears as Request No. 13 to Dr. Thabet and Request No. 30 to Dr. 

McCarthy. Notab!J, including subparts, ECI\11 issued forty-five requests to Dr. McCarthy. 

Even if lie did no further work on this case other than respond to E0\1's requests, it would 

take him weeks (if not months) to respond fully. 

16 The request provides: "Regardless of the date, if you have ever been a defendant 

or a plaintiff in a legal proceeding, [produce] copies of all complaints, answers, motions, and 

deposition, hearing and trial transcripts involvmg you from that proceeding along with all 

orders issued bytlie courts in those proceedings." 

17 The request provides: "[r]egardless of date, all contracts, retainers, and/ or 

agreements with Yale University." 

18 Specifically, the request seeks "[a]ll documents revealing shares of stock or 

ownership interests lield .by you in any company." 
Resp. Mot. for Leave 

Exh. RX-D

PUBLIC DOCUMENT

Emord &Associates, P.C. 

In the Matter of ECM BioFilms, Inc., No. 9358 

Page 6 

Unfortunately, these are only examples. Although requests like these suggest that 

compromise is unlikely, we want to avoid litigating these Issues if we can. Accordingly, 

please consider the alternative to motions practice we propose herein. 
RESPONDENT 

EXHIBIT 

RX-E 

Resp. Mot. for Leave 

Exh. RX-E

PUBLIC DOCUMENT
April 15, 2014 

VIA EMAIL: 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov)

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

Re: In re ECM BioFilms, Inc., No. 9358; Expert Discovery 

Counsel, 

 We respond here to your letter of April 11, 2014 concerning ECM’s subpoenas duces 

tecum served on April 7, 2014 for Drs. Frederick, McCarthy, and Tolaymet. You object to those 

subpoenas because they seek information beyond that required to be disclosed under Rule 3.31A. 

You argue that, rather than serving subpoenas, we are limited to “deposing [your] experts” or 

obtaining information “through discovery issued to Complaint Counsel.” You explained in our 

April 8, 2014 phone call that the Commission’s strict limit on expert subpoenas is necessary to

help Complaint Counsel secure future experts by protecting them from detailed inquiries. You 

also argue that serving your experts directly would have been in error because your experts 

“serve as [your] agents for purposes of this litigation.”1

 We disagree on all points, and we find 

precedential support for the use of expert subpoenas, which includes cases you misrepresent to 

be supportive of your position. We therefore insist on full compliance with our subpoenas. Your 

compensated experts should not be entitled to greater protections than the fact witnesses in this 

1 Per your request, we served you directly rather than issue subpoenas directly to your 

experts. However, because you contest our ability to reach expert materials through subpoenas 

duces tecum, and because your agency theory is expressly rejected by relevant case law, we may 

be obliged to serve your experts directly. 

11808 WOLF RUN LANE

CLIFTON, VA 20124

3210 S. GILBERT ROAD

SUITE 4 

CHANDLER, AZ 85286

(602) 388-8899 | FAX (602) 393-4361

1050 SEVENTEENTH STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20036

(202) 466-6937 | FAX (202) 466-6938

Jonathan W. Emord, Esq.

702.755.8202

jemord@emord.com

A Professional Corporation

WASHINGTON, D.C. | VIRGINIA | PHOENIX

Resp. Mot. for Leave 

Exh. RX-E

PUBLIC DOCUMENT
case, and you should not be entitled to rest on speculative assertions of inconvenience to experts 

as an excuse for denying the Respondent a full and fair opportunity to defend itself.2

 At the outset, your experts are not your agents for purposes of litigation. An expert 

witness “is not the sponsoring party’s agent merely because he is retained as its expert witness.” 

Glendale Fed. Bank, F.S.B. v. U.S., 39 Fed. Cl. 422, 424 (1997). The reason for this well 

accepted premise is clear: “Despite the fact that one party retained and paid for the services of 

an expert witness, expert witnesses are supposed to testify impartially in the sphere of their 

expertise.” Kirk v. Raymark Indus., Inc., 61 F.3d 147, 164 (3d Cir. 1995) (concluding that 

“[s]ince an expert witness is not subject to the control of the party opponent with respect to 

consultation and testimony he or she is hired to give, the expert witness cannot be deemed an 

agent”). We therefore reject your opening point, finding it contrary to law. Moreover, if 

principals of agency did apply, they still would not constrain our ability to seek evidence from 

your experts directly.

Next, ECM can issue subpoenas duces tecum to experts for the purpose of investigating 

relevant areas beyond the Rule 3.31A(c) categories. The documents discoverable from expert 

witnesses, who are compensated for their time, are not limited to the information they relied on 

when forming opinions in a case. Those experts subject themselves to this process voluntarily, 

unlike the more than fifty ECM customers served with Complaint Counsel subpoenas. Personal 

conflicts and biases influence the credibility of testimony, and the rules permit subpoenas duces

tecum to reach that critical information.3

 

You listed Dr. Steven McCarthy as an expert witness in this case. You plan to have Dr. 

McCarthy testify concerning the biodegradation of plastic polymers, ASTM tests and standards, 

and ECM’s biodegradability claims. However, Dr. McCarthy has conflicts of interest that 

compromise his independence, including professional and private interests and ties with 

companies that compete directly with ECM in the market. He stands to benefit from the FTC’s 

prosecution of ECM and, so, lacks requisite impartiality. Information related to his personal and 

financial connections would not be discoverable under the limited disclosures listed in Rule 

3.31A(c). ECM cannot be so limited in its ability to defend this case, and we do not agree that 

Rule 3.31A(c) was intended as an exclusive list of discovery information (nor does the rule so 

state). To the extent you rely on experts who are beholden to ECM competitors, ECM has a right 

to explore those facts.

2

 Complaint Counsel has served over 50 third party subpoenas on ECM customers. You 

have taken fact depositions of witnesses (e.g., Dr. Timothy Barber) that included substantive 

discussion more appropriate for expert testimony. We therefore find Complaint Counsel’s 

sudden (and legally unfounded) insistence on strict discovery limits unfounded. 

3 Because your experts are not “agents” as you suggested, we doubt that the information 

we need would be within Complaint Counsel’s custody, control, or possession. Document 

production requests are therefore inappropriate because they seek production of information 

from “another party” that is within the other party’s “possession, custody, or control...” See

Rule 3.37(a). Rather, the information we need is within your expert’s control, making a 

subpoena the most appropriate discovery mechanism.

Resp. Mot. for Leave 

Exh. RX-E

PUBLIC DOCUMENT
Contrary to your representations, the caselaw is not conflicting but consistent. No rules 

(or interpretations thereof) exempt experts from subpoenas duces tecum. A subpoena duces 

tecum “is an appropriate discovery mechanism against nonparties such as a party's expert 

witness.” Expeditors Int'l of Washington, Inc. v. Vastera, Inc., 04 C 0321, 2004 WL 406999 

(N.D. Ill. Feb. 26, 2004). Although you reference Federal Rule 26, that rule directly 

contemplates the use of standard discovery methods for expert materials:

[t]he enumeration in Rule 26(a) of items to be disclosed does not 

prevent a court from requiring by order or local rule that the parties 

disclose additional information without a discovery request. Nor 

are parties precluded from using traditional discovery methods to 

obtain further information regarding these matters, as for example 

asking an expert during a deposition about testimony given in 

other litigation beyond the four-year period specified in Rule 

26(a)(2)(B).

Advisory Comm. Notes for 1993 Amends, to Fed.R.Civ.P. 26(a) (emphasis added); United States 

v. Bazaarvoice, Inc, C 13-00133 WHO (LB), 2013 WL 3784240 (N.D. Cal. July 18, 2013) 

(“Rule 26(a)(2)(B) governs only disclosure in expert reports, however, and it does not preclude 

parties from obtaining further information through ordinary discovery tools”). 

Each case you cited, including Marsh, involved subpoenas that sought information 

relating to the expert files developed for the specific case at issue. See Thomas v. Marina 

Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (noting that “the information sought pertained 

directly to one of the parties in the case”); see e.g., In re Fuller, 2013 WL 5305317, at *1–3 (D. 

Me. Sept. 18, 2013) (denying motion to compel compliance with a subpoena that requested 

documents in the “expert’s files”—namely, documents relating directly to one of the 

defendants); Ambrose v. Southworth Prod. Corp., 1997 WL 470359, at *1 (W.D. Va. June 24, 

1997) (quashing subpoena served on an expert witness that requested documents that were 

“pertaining to [an intervenor-plaintiff] or [the defendant]”); Perry v. U.S., 1997 WL 53136, at *1 

(N.D. Tex. Feb. 4, 1997) (stating that a party may not use a subpoena in order to “gain access to 

opposing expert evidence” supporting his or her opinions); Greer v. Anglemeyer, 1996 WL 

56557, at *2 (N.D. Ind. Jan. 5, 1996) (quashing subpoena served on an expert witness because 

Rule 26(b)(4) limits an opposing party’s “right of access to the evidence of experts”); Hartford 

Fire Ins. Co. v. Pure Air on the Lake Ltd. P’ship, 145 F.R.D. 202, 208 (N.D. Ind. 1993) 

(quashing subpoena served on an alleged consulting expert which sought “facts, data, and 

information obtained and known” by the consulting expert); Quaile v. Carol Cable Co., 1992 

WL 277981, at *2 (E.D. Pa. Oct. 5, 1992) (holding that a subpoena served on an expert witness 

is valid if it seeks information for impeachment and ordering the expert to respond to seven of 

eight requests in the subpoena); Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992) (quashing 

subpoenas served on expert witnesses where the subpoenas sought production of the experts’ 

“entire files related to the plaintiff”). In sum, the Courts that denied access did so because the 

requester tried to circumvent privilege and discovery rules, including the work product privilege. 

Resp. Mot. for Leave 

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PUBLIC DOCUMENT
ECM currently does not seek information about Drs. McCarthy’s, Frederick’s and 

Tolaymet’s expert opinion in our matter sub judice, work-product communications, or attorneyclient privileged materials. To the extent that any request of ECM seeks such information that it 

is entitled to under the Commission’s Rules and Judge Chappell’s Scheduling Order, those 

authorities govern the breadth and timing of disclosure.

4

 ECM seeks material necessary to 

investigate relevant aspects of the case, including, but not limited to, bias and conflicts of 

interest. Evidence of an expert witness’s bias is relevant and discoverable. See Behler v. 

Hanlon, 199 F.R.D. 553, 557 (D. Md. 2001) (citing United States v. Abel, 469 U.S. 45, 49–52 

(1984)) (other citations omitted) (noting that “[T]he importance of credibility of witnesses to the 

trial of cases cannot be overstated, and this is especially true with respect to expert witnesses”) 

(emphasis added). ECM is accorded “very considerable latitude” into the bias of your experts. 

LNC Investments, Inc. v. First Fid. Bank, 92CIV.7584(CSH), 2000 WL 1182772 (S.D.N.Y. Aug. 

21, 2000) (Memorandum Op.). ECM’s requests of Drs. McCarthy, Frederick and Tolaymet 

investigate precisely such issues. We ask for materials and correspondence with non-parties that 

reveal their clear bias against ECM and its additive technology, that they have performed work 

relied on by the FTC for use in creating controversial sections of the Green Guides, and have 

worked for private groups that lobbied against ECM’s technology for financial gain. 

Additionally, we seek specific facts surrounding Dr. McCarthy’s patents and grants. See, e.g.,

U.S. Patent No. 5,883,199 (issued Mar. 16, 1999); Patent No. 5,439,985 (issued Aug. 8, 1995). 

In the administrative decisions you cited, the Commission neither adopted a “majority 

view,” nor suggested that ECM cannot serve expert subpoenas. See, e.g., In the Matter of Basic 

Research, No. 9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004) (discussing the scope of 

the respondent’s subpoenas, not the ability to serve them). The decision in Basic Research

supports the use of subpoenas duces tecum, particularly to the extent those subpoenas seek 

information within the scope of discovery per Rule 3.31(c)(1). Id. (denying discovery under the 

Rule 3.31(c) standard and to the extent that “Respondents have not demonstrated that [the] 

discovery is reasonably expected to yield information relevant to the allegations of the 

complaint, to the proposed relief, or to the defenses of the respondent...”). Notably, Complaint 

Counsel in the Basic Research case did not contest the use of subpoenas with experts, but only 

parts of those subpoenas. Your position is thus contrary to your own precedent. 

We reserve all rights. Your experts are obliged to produce information in response to our 

subpoenas under Rule 3.34. You are delaying production and must either answer the subpoenas 

or move for relief from them. You cannot sit idly because you are under subpoena obligations to 

produce. In the interests of cooperation, we have revised our subpoenas to further limit the 

information we seek. Our revisions should address those of your concerns that are legitimate;

4

 When ECM originally issued its expert subpoenas, the timing for production would 

have occurred after Complaint Counsel’s experts reports were due under the then-operative 

Scheduling Order. Now, following the Second Revised Scheduling Order, to the extent ECM’s 

subpoenas overlap or seek information included within Rule 3.31A(c), that information should 

be provided under the Scheduling Order and not ECM’s subpoena. The subpoena response date 

was April 25, 2014, although we are willing to negotiate an extension given the Court’s recent 

changes to the scheduling order.

Resp. Mot. for Leave 

Exh. RX-E

PUBLIC DOCUMENT
and the enclosed files, modified to account for the aforementioned legitimate objections, 

supersede our earlier requests.5

 

 Sincerely,

 

 Jonathan W. Emord 

Peter A. Arhangelsky

Lou F. Caputo 

Enclosures: (3) 

5 We offer the revised subpoenas solely as an accommodation intended to narrow issues 

in dispute. 

Resp. Mot. for Leave 

Exh. RX-E

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-F-1 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________ 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

COMPLAINT COUNSEL’S OBJECTIONS AND RESPONSES TO THE SUBPOENA 

DUCEUS TECUM TO DR. STEPHEN MCCARTHY

Pursuant to Rules 3.34 and 3.38A of the Federal Trade Commission’s Rules of Practice 

for Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s Subpoena Duces Tecum (“Subpoena”) to Dr. Stephen McCarthy 

(“Expert”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable for lack of Commission Seal. 

2. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable because it is issued directly to Complaint Counsel’s expert and not to Complaint 

Counsel. 

3. Complaint Counsel objects to the Subpoena to the extent that it calls for the 

discovery of information beyond the scope of § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. See also In the Matter of Basic Research, No. 

9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004); In re Dura Lube, No. 9292, 1999 FTC 

LEXIS 254 (F.TC. Dec. 15, 1999). 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
4. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

before expert disclosures are required in accordance with § 3.31A of the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this case.

5. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

that is not relevant to the subject matter of the litigation and/or not reasonably calculated to lead 

to the discovery of information relevant to the allegations of the complaint, to the proposed 

relief, or to Respondent’s defenses. 

6. Complaint Counsel objects to the Subpoena to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

7. Complaint Counsel objects to the Subpoena to the extent that it is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive. 

8. Complaint Counsel objects to the Subpoena because the burden and expense of 

the proposed discovery outweigh its likely benefit. 

9. Complaint Counsel objects to the Subpoena to the extent it seeks information that 

is subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, that is exempt from 

disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is protected from 

disclosure by the privilege for information given to the FTC on a Pledge of Confidentiality, that 

is protected from disclosure under principles of financial privacy, that is subject to a protective 

order from another litigation, or that is subject to other applicable legal protection or privilege. 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
10. Complaint Counsel objects to the Subpoena to the extent that it calls for materials 

outside the scope of discovery pursuant to Rule 3.31(c)(2).

11. By providing information in response to the Subpoena, Complaint Counsel does 

not concede that the Subpoena is valid, appropriate, or that such information is relevant, material, 

or admissible in evidence. 

12. Complaint Counsel’s objections and responses to the Subpoena are based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

13. Complaint Counsel will not produce information responsive to any request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or prosecution of this matter.

14. Complaint Counsel will not produce information responsive to any request that 

has been provided to Respondent previously at any point during the investigation or prosecution 

of this matter.

15. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 

OBJECTIONS AND RESPONSES TO SUBPOENA SPECIFICATIONS

1. All documents received or possessed before you were engaged as an expert (consulting or 

testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and 

present employee or principal of ECM, and/or the ECM additive. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Complaint Counsel will produce all responsive, non-privileged documents 

within the scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order 

and the Commission Rules. 

2. All documents, materials, correspondence, forms, marketing material, and testing used or 

referenced to form any and all opinions you may offer in this case. Production of all 

responsive materials should be submitted in accordance with the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

3. All contracts, retainers, or engagement letters between you and any public or private firm 

that manufactures and/or produces biodegradable and/or compostable products. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

beyond the scope of information to be produced under Rule 3.31A and Paragraph 19 of 

the Court’s Scheduling Order. Complaint Counsel further objects to this Request to the 

extent that it seeks information not likely to lead to relevant evidence, and to the extent 

that this unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-

(iii).

4. All reports, analyses, assessments, tests, data, summaries, and conclusions issued to any 

public or private firm that manufactures and/or produces biodegradable and/or 

compostable products concerning the biodegradability of plastics manufactured by those 

companies. 

RESPONSE: Complaint Counsel hereby incorporates by reference each General 

Objection as if set forth here in full. Complaint Counsel hereby objects to this Request to 

the extent that it seeks information not likely to lead to relevant evidence, and to the 

extent that this unlimited request is overbroad and burdensome under 16 CFR § 

3.31(c)(2)(i)-(iii). Complaint Counsel objects to this Request because it seeks 

information beyond the scope of information to be produced under Rule 3.31A and 

Paragraph 19 of the Court’s Scheduling Order. 

5. All correspondence between you and any firm that manufactures and/or produces a 

product or substance in competition generally with other biodegradable plastic products 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
(to wit, ECM’s additive) concerning the biodegradability of plastics manufactured with

plastic additives. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

6. All correspondence and sections of contracts, retainers, and/or agreements with the 

University of Massachusetts, Lowell (“Umass”) concerning funding (including research 

grants) of research related to biodegradable plastics or polymers. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

7. All your pending or existing patents that involve or relate to plastics and or biodegradable 

and compostable substances, products, and technologies, including those patents for 

which you are the assignor. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

McCarthy has disclosed his complete Curriculum Vitae, which includes a list of all his 

patents. Subject to and without waiving the foregoing General and specific objections, 

Complaint Counsel will produce all responsive, non-privileged documents within the 

scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order and the 

Commission Rules.

8. All licensing or royalty agreements involving or concerning patents identified supra in 

response to Request 7, and all such agreements involving intellectual property related to 

biodegradable and compostable products. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Dr. McCarthy has disclosed his complete Curriculum Vitae, which includes a 

list of all his patents. 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
9. Copies of all contracts, grant documents (including proposals) for the following research 

projects you were involved in: 

a. Metabolix, “Development of Novel of Biodegradable Materials, $1,500,196 

b. NSF Center for Biodegradable Polymer Research, $1,200,000 Industrial Members 

(8/93-present), Principal Investigator 

c. Polymer Degradation Research Center, $475,000, Industrial Members (8/89-8/93) 

d. Digital, “Plastics Materials Research”, $458,706 

e. Metabolix Inc., Performance of PHA Derived Chemicals and Polyols in 

Polyurethane, $141,465 

f. 3M, “Composting Research”, $155,000 

g. Warner Lambert, “Biodegradable Polymer Research”, $116,591 

h. National Science Foundation, “Biodegradable Polymer Research Center”, 

$110,000 (8/93-8/95) 

i. Department of the Army, “Polymer Degradation Research”, $104,000 

j. Institute for Plastics Innovation, “Injection Molding Research”, $75,000 

k. Massachusetts Centers of Excellence, “Institute for Plastics Innovation”, $75,000 

l. Metabolix Inc., Performance of Polyhydroxyalkanote Derived Chemicals and 

Polyols in Polyurethane, $71,465 

m. Battelle, “Biodegradable Packaging Development”, $59,865 

n. DuPont Corian, $50,000 

o. Invista, “Evaluation of Plasticizers”, $ 28,000 

p. Massachusetts Centers of Excellence, “Polymer Degradation Research”, $25,000 

RESPONSE: Complaint Counsel hereby incorporates by reference each General 

Objection as if set forth here in full. Complaint Counsel hereby objects to this Request to 

the extent that it seeks information not likely to lead to relevant evidence, and to the 

extent that this unlimited request is overbroad and burdensome under 16 CFR § 

3.31(c)(2)(i)-(iii). Complaint Counsel objects to this Request because it seeks 

information beyond the scope of information to be produced under Rule 3.31A and 

Paragraph 19 of the Court’s Scheduling Order. 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
10. All documents concerning any testing or product evaluations involving biodegradable 

and/or compostable plastics in which you participated on behalf of, or as a member of, 

the BioEnvironmental Polymer Society and/or the Society of Plastics Engineers.

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

11. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

12. All correspondence with Dr. Ramani Narayan. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

13. All correspondence with any employee or contracting employee of O.W.S., Inc. related to 

biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

14. All correspondence (not subject to attorney client or work-product privilege and received 

before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics. 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

15. All correspondence with any witness, person, and/or consultant used to help form any 

opinion you have in this case. Production of all responsive materials should be submitted 

in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order 

in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

16. All documents revealing shares of stock or ownership interests held by you in any 

company that sells, manufactures, or markets plastics, biodegradable technologies, and/or 

compostable technologies. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

17. A listing of all consultant, executive, or corporate positions you held concerning work or 

employment related to the biodegradability of plastics over the past ten years. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Dr. McCarthy has disclosed his complete Curriculum Vitae, which includes a 

list of all his positions related to biodegradability of plastics over the past ten years.

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
18. All documents and correspondence between you and the authors of the article Gómez, 

EF, Michel Jr., FC. “Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and long-term soil incubation” 

Polymer Degradation and Stability, Vol. 98 (December 2013): 2583-2591. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

McCarthy has disclosed his complete Curriculum Vitae, which includes a list of all his 

scientific publications, papers, or presentations. Subject to and without waiving the 

foregoing General and specific objections, Complaint Counsel will produce all 

responsive, non-privileged documents within the scope of Rules 3.31 and 3.31A, and in 

accordance with the Scheduling Order and the Commission Rules. 

19. Copies of all scientific publications, papers, or presentations that you authored 

concerning the rate or extent of biodegradable (including compostable) polymers when 

measured in a laboratory environment or in situ. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

McCarthy has disclosed his complete Curriculum Vitae, which includes a list of all his 

scientific publications, papers, or presentations. Subject to and without waiving the 

foregoing General and specific objections, Complaint Counsel will produce all 

responsive, non-privileged documents within the scope of Rules 3.31 and 3.31A, and in 

accordance with the Scheduling Order and the Commission Rules. 

20. All conflict of interest forms or agreements completed or signed by you in association 

with your work at the Umass, or as a testifying witness in this case. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

21. All documents concerning ASTM, including correspondence, in which you presented a 

proposal, voted on a proposal, or opposed a proposal concerning biodegradable plastics 

standards or test methods. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

22. If you have ever served as an expert in any other proceeding involving the Federal Trade 

Commission, copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. McCarthy has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

23. If you have ever served as an expert in any other legal proceeding involving plastics 

technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. McCarthy has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
Dated: April 25, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 326-2185 

 Jonathan Cohen (202) 326-2551 

 Elisa K. Jillson (202) 326-3001

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop M-8102B 

Washington, DC 20580

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
CERTIFICATE OF SERVICE

I hereby certify that on April 25, 2014, I caused a true and correct copy of the paper 

original of the foregoing document to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

I further certify that I possess a paper copy of the signed original of the foregoing document that 

is available for review by the parties and the adjudicator.

April 25, 2014 /s/ Katherine Johnson 

 Katherine Johnson 

Resp. Mot. for Leave 

Exh. RX-F-1

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-F-2 

Resp. Mot. for Leave 

Exh. RX-F-2

PUBLIC DOCUMENT
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________ 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

COMPLAINT COUNSEL’S OBJECTIONS AND RESPONSES TO THE SUBPOENA 

DUCEUS TECUM TO DR. THABET TOLAYMAT 

Pursuant to Rules 3.34 and 3.38A of the Federal Trade Commission’s Rules of Practice 

for Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s Subpoena Duces Tecum (“Subpoena”) to Dr. Thabet Tolaymat 

(“Expert”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable for lack of Commission Seal. 

2. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable because it is issued directly to Complaint Counsel’s expert and not to Complaint 

Counsel. 

3. Complaint Counsel objects to the Subpoena to the extent that it calls for the 

discovery of information beyond the scope of § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. See also In the Matter of Basic Research, No. 

9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004); In re Dura Lube, No. 9292, 1999 FTC 

LEXIS 254 (F.TC. Dec. 15, 1999). 

Resp. Mot. for Leave 

Exh. RX-F-2

PUBLIC DOCUMENT
4. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

before expert disclosures are required in accordance with § 3.31A of the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this case.

5. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

that is not relevant to the subject matter of the litigation and/or not reasonably calculated to lead 

to the discovery of information relevant to the allegations of the complaint, to the proposed 

relief, or to Respondent’s defenses. 

6. Complaint Counsel objects to the Subpoena to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

7. Complaint Counsel objects to the Subpoena to the extent that it is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive. 

8. Complaint Counsel objects to the Subpoena because the burden and expense of 

the proposed discovery outweigh its likely benefit. 

9. Complaint Counsel objects to the Subpoena to the extent it seeks information that 

is subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, that is exempt from 

disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is protected from 

disclosure by the privilege for information given to the FTC on a Pledge of Confidentiality, that 

is protected from disclosure under principles of financial privacy, that is subject to a protective 

order from another litigation, or that is subject to other applicable legal protection or privilege. 

Resp. Mot. for Leave 

Exh. RX-F-2

PUBLIC DOCUMENT
10. Complaint Counsel objects to the Subpoena to the extent that it calls for materials 

outside the scope of discovery pursuant to Rule 3.31(c)(2).

11. By providing information in response to the Subpoena, Complaint Counsel does 

not concede that the Subpoena is valid, appropriate, or that such information is relevant, material, 

or admissible in evidence. 

12. Complaint Counsel’s objections and responses to the Subpoena are based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

13. Complaint Counsel will not produce information responsive to any request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or prosecution of this matter.

14. Complaint Counsel will not produce information responsive to any request that 

has been provided to Respondent previously at any point during the investigation or prosecution 

of this matter.

15. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 

OBJECTIONS AND RESPONSES TO SUBPOENA SPECIFICATIONS

1. All documents received or possessed before engagement as an expert (consulting or 

testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and 

present employee or principal of ECM, and/or the ECM additive. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. for Leave 

Exh. RX-F-2

PUBLIC DOCUMENT
Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Complaint Counsel will produce all responsive, non-privileged documents 

within the scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order 

and the Commission Rules. 

2. All documents, materials, correspondence, forms, marketing material, and testing used or 

referenced to form any and all opinions you may offer in this case. Production of all 

responsive materials should be submitted in accordance with the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

3. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

4. All correspondence with Dr. Ramani Narayan. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

5. All correspondence with any employee or contracting employee of O.W.S., Inc. related to 

biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. for Leave 

Exh. RX-F-2

PUBLIC DOCUMENT
of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

6. All correspondence (not subject to attorney client or work-product privilege and received 

before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

7. All correspondence with any witness, person, and/or consultant used to help form any 

opinion you have in this case. Production of all responsive materials should be submitted 

in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order 

in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rule 3.31 in the 

custody, possession, or control of Complaint Counsel in accordance with the Scheduling 

Order and the Commission Rules. 

8. A listing of all shares of stock or ownership interests held by you in any company 

associated with plastics, biodegradable products or technologies, and/or compostable 

products or technologies 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

9. Copies of all papers, articles, and presentations that you authored concerning the rates of 

biodegradation of landfilled waste, including municipal solid waste landfills, bioreactor 

landfills, and commercial composters. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. for Leave 

Exh. RX-F-2

PUBLIC DOCUMENT
Subject to and without waiving the foregoing General and specific objections, attached 

hereto as Attachment A is a true and correct copy of Dr. Tolaymat’s Curriculum Vitae, 

which includes a list of all his scientific publications, papers, or presentations, and

Complaint Counsel will produce all responsive, non-privileged documents within the 

scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order and the 

Commission Rules.

10. Copies of all papers, articles, and publications that you authored or co-authored 

concerning the anaerobic or aerobic biodegradability of plastic polymers. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, attached 

hereto as Attachment A is a true and correct copy of Dr. Tolaymat’s Curriculum Vitae, 

which includes a list of all his scientific publications, papers, or presentations. Complaint 

Counsel has produced all responsive, non-privileged documents within the scope of Rule 

3.31 in the custody, possession, or control of Complaint Counsel. 

11. All correspondence between you and Dr. Morton Barlaz concerning rates of 

biodegradation in landfills. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

12. All conflict of interest forms or agreements signed by you in association with your 

employment with the Environmental Protection Agency, or in association with this case. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

13. If you have ever served as an expert in any other proceeding involving the Federal Trade 

Commission, copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

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of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Tolaymat has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

14. If you have ever served as an expert in any other legal proceeding involving plastics 

technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Tolaymat has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

Dated: April 25, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 326-2185 

 Jonathan Cohen (202) 326-2551 

 Elisa K. Jillson (202) 326-3001

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop M-8102B 

Washington, DC 20580

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CERTIFICATE OF SERVICE

I hereby certify that on April 25, 2014, I caused a true and correct copy of the paper 

original of the foregoing document to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

I further certify that I possess a paper copy of the signed original of the foregoing document that 

is available for review by the parties and the adjudicator.

April 25, 2014 /s/ Katherine Johnson 

 Katherine Johnson 

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Thabet M. Tolaymat Ph.D. Tolaymat.thabet@epa.gov

26 West Martin Luther King Drive 

Cincinnati Ohio, 45230 

513-457-2860 

EDUCATION

Doctorate of Philosophy in Environmental Engineering Sciences

University of Florida Gainesville, FL 2003

Masters of Engineering in Environmental Engineering Sciences

University of Florida Gainesville, FL 1997

Bachelor of Science in Environmental Engineering

University of Florida Gainesville, FL 1995

EMPLOYMENT

Interim Associate National Program Director

USEPA/ORD Cincinnati, OH 2012- October 2013

• Assist the national program director in the areas of emerging materials (e.g., nanomaterials) and 

sustainability. Responsible for setting research priority and providing resources to complete the research. 

Environmental Engineer

USEPA/ORD Cincinnati, OH September 2004-Present

• Project Lead for Solid Waste Management Systems Research

• Project Lead for Nanomaterials Research

• ORD Project Lead under Safe and Healthy Community Strategic Research Plan for Energy from Solid 

Wastes and Construction and Demolition Debris. Work in the Solid Waste Branch and conduct research in 

the area of solid waste and nanomaterials and assisting EPA HQ and Regional offices in the following 

areas:

o Performance of Solid Waste Containment Units (municipal solid waste, hazardous waste and ash 

mono-fill landfills)

o Bioreactor Landfills. New landfill design that promotes the degradation and subsequent removal 

of degradable fraction of solid waste as well as organic pollutants. 

 Subtitle D “dry tomb” lined landfill 

 Remediation of contaminated landfill at superfund sites

o Co-disposal of solid waste and hazardous waste

o Construction and demolition waste

o Metal release, mobility from contaminated wastes

• ORD Project Lead under Chemical Safety and Sustainability Strategic Research Plan for Nanomaterials. 

Leading EPA’s Office of Research and Development National Risk Management Research Laboratory in 

the area of silver nanoparticles. 

o Evaluation of the impacts of nanoparticles on human health and the environments. 

o The evaluation of the impact of environmental conditions on the fate and transport of silver 

nanoparticles. 

o The evaluation of the impact of silver nanoparticles use on waste management systems

Research Scientist (Federal Post-Doc)

USEPA/ORD Cincinnati, OH December 2003-September 2004

• Conduct Research on bioreactor technology. Research includes gathering, assimilating and assessing data 

gathered at the Outer Loop landfill. Coordinate EPA/ORD efforts with the Solid Waste Association of 

North America (SWANA) and Interstate Technology Regulatory Transfer (ITRC) to develop and distribute 

bioreactor landfill guidance document. Conduct research to examine the effectiveness of TCLP to simulate 

metal mobility in bioreactor landfills.

Graduate Research Assistant (Ph.D. Candidate)

University of Florida Gainesville, FL August 1997-December 2003

• Designed and conducted a battery of tests to evaluate risk associated with the land application of solid 

wastes. The research shed light on the appropriate use of dilution attenuation factors when assessing risk 

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from ground water contamination. Carried out technical advisory group meetings with regulators (USEPA 

and FDEP), industry, and the general public. These meetings were designed to increase the understanding 

between these interested groups and direct the research to benefit the general public.

• Assisted in the design, permitting, and construction of the Polk County Bioreactor Landfill. Coordinated 

work between the Polk County landfill engineers, landfill operators, the Florida Department of 

Environmental Protection (FDEP) and fellow graduate students. Addressed design concerns that were 

raised by FDEP.

• Organized and assisted in evaluating risk from the use and reuse of chromated copper arsenate (CCA) 

treated wood. Wrote final reports and recommendations for FDEP.

Research Assistant

Applied Environmental Consulting Gainesville, FL May 1996 - August1997

• Coordinated and carried out experiments to evaluate risk associated with the exposure to naturally 

occurring radioactive material (NORM). Conducted interviews with phosphate workers to evaluate 

radiation exposure time. Assisted with drafting the final report that was submitted to the Florida Institute 

of Phosphate.

JOURNAL PUBLICATIONS

1. Jain, P., Powell, J., Smith, J., Townsend, T., Tolaymat, T., (2014) “Life-Cycle Inventory and Impact 

Evaluation of Mining Municipal Solid Waste Landfills” Environmental Science & Technology 48 (5), 2920-

2927 

2. Huang, X., El Badawy, A., Arambewela, M., Ford, R., Barlaz, M., Tolaymat, T., (2014) “Characterization of 

Salt Cake from Secondary Aluminum Production” Journal of Hazardous Materials (273):192-199

3. Ivask, A., El Badawy, A., Kaweeteerawat, C., Boren, D., Fischer, H., Ji, Z., Chang, C., Liu, R., Tolaymat, T., 

Telesca, D., Zink, J., Cohen, Y., Holden, P., Godwin, H., (2014) “Toxicity Mechanisms in Escherichia coli 

Vary for Silver Nanoparticles and Differ from Ionic Silver” ACS Nano 8 (1), 374-386 

4. Silva, T., Pokhrel, L., Dubey, B., Tolaymat, T., Maier, K., Liu, X., (2014) “Particle Size, Surface Charge and 

Concentration Dependent Ecotoxicity of Three Organo-Coated Silver Nanoparticles: Comparison Between 

General Linear Model-Predicted and Observed Toxicity” Science of The Total Environment, (468) 15:968-976,

5. Gitipour, A., El Badawy, A., Arambewela, M., Miller, B., Scheckel, K., Elk, M., Ryu, R., Gomez-Alvarez, V., 

Santo Domingo, J., Thiel, S., Tolaymat., T. (2013) “The Impact of Silver Nanoparticles on the Composting of 

Municipal Solid Waste” Environmental Science & Technology 47 (24): 14385-14393 

6. Nel etl. al., (2013) “A Multi-Stakeholder Perspective on the Use of Alternative Test Strategies for Nanomaterial 

Safety Assessment” ACSNano, (7)8:6422-6433.

7. Xu, Q., Powell, J., Tolaymat, T., Townsend, T. (2013). "Seepage Control Strategies at Bioreactor Landfills." J. 

Hazard. Toxic Radioact. Waste, 17(4), 342–350.

8. Tolaymat, T., Kim, H., Jain, P., Powell, J., and Townsend, T. (2013). "Moisture Addition Requirements for 

Bioreactor Landfills." J. Hazard. Toxic Radioact. Waste, 17(4), 360–364. 

9. El Badawy, A.; Schekel, K.; Suidan, M.; Tolaymat, T. (2013) “Key Factors Controlling the Transport of Silver 

Nanoparticles in Porous Media” Environmental Science and Technology, 2013, 47 (9), 4039–4045. 

10. Mwilu, S. K.; El Badawy, A.; Bradham, K.; Thomas, D.; Scheckel, K. G.; Tolaymat, T. M.; Ma, L.; Rogers, K. 

(2013) “Changes in Silver Nanoparticles Exposed to Human Synthetic Stomach Fluid: Effects of Particle Size 

and Surface Chemistry” Science of the Total Environment, (447): 90-98. 

11. Tolaymat, T.; El Badawy, A.; Carson, D. (2013) “Estimate of the Decay Rate Constant of Hydrogen Sulfide 

from Drywall in a Simulated Bench-Scale Study. J. Environ. Eng. (139): 538-544.

12. Kim R. Rogers, K., Bradham, K., Tolaymat, T., Thomas, D., Hartmann, T., Ma, L., Williams, A. (2012) 

“Alterations in Physical State of Silver Nanoparticles Exposed to Synthetic Human Stomach Fluid” Science of 

the Total Environment. (420):334-339.

13. Pokhrel, L., Silva, T., Dubey, B., Elbadawy, A., Tolaymat., T. (2012) “Rapid Screening of Aquatic Toxicity of 

Metal-Based Nanoparticles Using the MetPLATE Assay” Science of the Total Environment. (426):414-422.

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14. El Badawy, A., Scheckel, K., Suidan, M., Tolaymat, T. (2012) “The Impact of Stabilization Mechanism on the 

Aggregation Kinetics of Silver Nanoparticles” Science of the Total Environment. (429):325-331.

15. El Badawy, A., Scheckel, K., Suidan, M., Tolaymat, T. (2011) “Surface Charge-Dependent Toxicity of Silver 

Nanoparticles” Environmental Science and Technology (45)1:283-287.

16. Costanza, J., El Badawy, A., Tolaymat, T. (2011) “Comment on 120 Years of Nanosilver History: Implications 

for Policy Makers” Environmental Science and Technology. (45)17:7591-7592

17. Jain, P., Townsend, T., Tolaymat T., (2010) “Steady-State Design of Vertical Wells for Liquids Addition at 

Bioreactor Landfills” Waste Management. (30)11:2022-2029.

18. Jain, P., Townsend, T., Tolaymat T., (2010) “Steady-State Design of Horizontal Wells for Liquids Addition at 

Bioreactor Landfills” Waste Management. (30)12:2560-2569.

19. Bareither, C., Benson, C., Barlaz, M., Edil, T., Tolaymat, T. (2010) “Performance of North American 

Bioreactor Landfills. I: Leachate Hydrology and Waste Settlement” J. Environmental Engineering-ASCE. 

(136)8:824-838

20. Barlaz, M., Bareither, C., Hossain, A., Saquing, J., Mezzari, I., Benson, C., Tolaymat, T., Yazdani, R. (2010) 

“Performance of North American Bioreactor Landfills. II: Chemical and Biological Characteristics” J. 

Environmental Engineering-ASCE. (136)8:839-853

21. Genaidy, A., Sequeira, R., Tolaymat, T., Kohler, J., Wallace, S., Rinder, M. (2010) “Integrating Science and 

Business Models of Sustainability for Environmentally-Challenging Industries such as Secondary Lead 

Smelters: A Systematic Review and Analysis of Findings”. J. Environmental Management. (91)9:1872-1882

22. Musson, S., Campo, P., Tolaymat, T., Suidan, S., Townsend, T., (2010) “Assessment of the Anaerobic 

Degradation of Six Active Pharmaceutical Ingredients” Science of The Total Environment, (38)9: 2068-2074

23. Jang, Y., Jain, P., Tolaymat, T., Dubey, B., Singh, S., Townsend, T. (2010) “Characterization of Roadway 

Stormwater System Residuals for Reuse and Disposal Options” Science of the Total Environment. 

(407)12:3686-3701

24. Tolaymat, T., Green, R.,Hater, G., Barlaz, M., Black, P., Bronson, D., Powell, J. (2010) “Evaluation of Landfill 

Gas Decay Constant for Municipal Solid Waste Landfills Operated as Bioreactors” J. Air & Waste Management 

Association. (60)1:91-97

25. Tolaymat, T., El Badawy, A., Genaidy, A., Scheckel, K., Luxton, T., Suidan, M. (2010) “An Evidence-Based 

Environmental Perspective of Manufactured Silver Nanoparticle in Syntheses and Applications: A Systematic 

Review and Critical Appraisal of Peer-Reviewed Scientific Papers” Science of the Total Environment. 

(408)5:999-1006

26. Scheckel, K., Luxton, T., El Badawy, A., Impellitteri, C., Tolaymat, T. (2010) “Synchrotron Speciation of 

Silver and Zinc Oxide Nanoparticles Aged in a Kaolin Suspension” Environmental Science and Technology. 

(44)4:1307-1312

27. El Badawy, A. Luxton, T., Silva, R., Scheckel, K., Suidan, M., Tolaymat, T. (2010) “Impact of Environmental 

Conditions (pH, Ionic Strength, and Electrolyte Type) on the Surface Charge and Aggregation of Silver 

Nanoparticles Suspensions” Environmental Science and Technology. (44)4:1260-1266

28. Tolaymat, T., Al-Abed, S., Jegadeesan, G. (2009) “Impact of Bioreactor Landfill Leachate Quality on As, Cd, 

Pb and Zn Leaching from Mine Residues” J Residuals Science & Technology (6)2: 89-96

29. Impellitteri, C., Tolaymat, T., Scheckel, K., (2009) “The Speciation of Silver Nanoparticles in Antimicrobial 

Fabric before and after Exposure to a Hypochlorite/Detergent Solution” J. Environmental Quality. (38) 4:1528-

1530

30. Genaidy, A., Tolaymat, T., Sequeira, R. (2009) “Health Effects of Exposure to Carbon Nanofibers: Systematic 

Review, Critical Appraisal, Meta Analysis and Research to Practice Perspectives” Science of the Total 

Environment. (407) 12:3686-3701

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31. Genaidy, A., Sequeira, R., Tolaymat, T., Kohler, J., Rinder, M. (2009) “Evidence-Based Integrated 

Environmental Solutions for Secondary Lead Smelters: Pollution Prevention and Waste Minimization 

Technologies and Practices” Science of the Total Environment. (407)10:3239-3268

32. Jang, Y., Jain, P., Tolaymat, T., Dubey, B., Townsend, T. (2009) “Characterization of Pollutants in Florida 

Street Sweepings for Management and Reuse” J. Environmental Management. (91)2:320-327

33. Tolaymat, T., Dubey, B., Townsend, T. (2008) “Assessing risk posed by land application of ash from the 

combustion of wood and tires” J. Residuals Scinece & Technology. (5) 2:61-75.

34. Jjemba, P., Morris, B., Tolaymat, T. (2008) “Specific Energy Output from Urban Residues Degraded with 

Leachate and an Off-Specification Industrial Carbonated Beverage as Moisture Sources” Biomass and 

Bioenergy (32)1:51-59

35. Genaidy, A., Sequeira, R., Tolaymat, T., Kohler, J., Rinder, M.(2008) “An Exploratory Study of Lead 

Recovery in Lead-Acid Battery Lifecycle in US Market: An Evidence-Based Approach” Science of the Total 

Environment (407)1:7-22

36. Al-Abed, S., Jegadeesan, G., Scheckel, K., Tolaymat, T. (2008) “Speciation, Characterization, and Mobility of 

As, Se, And Hg in Flue Gas Desulphurization Residues” Environmental Science & Technology. (42)5: 1693-

1698

37. Townsend, T., Dubey, B., Tolaymat, T. (2006). “Interpretation of SPLP Results for Assessing Risk to 

Groundwater from Land-Applied Granular Waste” Environmental Engineering Science. (23)1:239-251

38. Williams, A., Scheckle, K., Tolaymat, T., Impellitterie, C. (2006)”Mineralogy and Characterization of Arsenic, 

Iron, and Lead in a Mine Waste-Derived Fertilizer” Environmental Science and Technology. (40)16:4874-4879

39. Stook, K., Tolaymat, T., Ward, M., Dubey, B., Townsend, T., Solo-Gabriele, H., Bitton, B. (2005). "Relative 

Leaching and Aquatic Toxicity of Pressure-Treated Wood Products Using Batch Leaching Tests." 

Environmental Science & Technology, 39(1), 155-163.

40. Jain, P., Jang, Y., Tolaymat, T., Witwer, M., Townsend T. (2005)“Recycling of Water Treatment Sludge Via 

Land Application: Assessment of Risk” J. Residuals Science and Technology 2(1):16-20

41. Townsend, T., Dubey, B., Tolaymat, T., Solo-Gabriele, H. (2005). "Preservative Leaching from Weathered 

CCA-Treated Wood." J. Environmental Management, 75(2), 105.

42. Townsend, T., Tolaymat, T., Leo, K., Jambeck, J. (2004). "Heavy Metals in Recovered Fines from 

Construction and Demolition Debris Recycling Facilities in Florida." Science of The Total Environment, 332(1-

3)

43. Townsend, T., Tolaymat, T. Solo-Gabriele, H., Dubey, B., Stook, K., wadanambi, L.(2004). "Leaching of 

CCA-Treated Wood: Implications for Waste Disposal." J. Hazardous Materials, 114(1-3), 75. 

44. Iida, K., Pierman, J., Tolaymat, T., Townsend, T., Wu, C. (2004).”Control of Heavy Metal Emissions and 

Leaching from Incineration of CCA-Treated Wood Using Mineral Sorbents.” J. Environmental Engineering, 

ASCE. 1302(2), 184-192.

45. Townsend, T., solo-Gabriele, H., Tolaymat, T., Stook, K., Hosein, N. (2003). “Chromium, Cooper and Arsenic 

Concentrations in Soil Underneath CCA-Treated Wood Structures.” Soil and Sediment Contamination. 12(6), 

779-798.

46. Townsend, T., Solo-Gabriele, H., Tolaymat, T., Stook, K. (2003). "Impact of Chromated Copper Arsenate 

(CCA) in Wood Mulch." The Science of the Total Environment, 309(1-3), 173-185. 

47. Tolaymat, T., Townsend, T., Solo-Gabriele, H. (2000) “Chromated Copper Arsenate-Treated Wood in 

Recovered Wood.” Environmental Engineering Science 17(1):19-28.

EPA REPORTS

1. Tolaymat, T., Kremer, F., Carson, D., Davis-Hoover, W. Monitoring Approaches For Bioreactor Landfills.

U.S. Environmental Protection Agency, National Risk Management Research Laboratory. Cincinnati, OH

EPA/600/R-04/301, 2004. 

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2. Meer, S., Benson, C., Tolaymat, T., Carson, D. In-Service Hydraulic Conductivity Of GCLs In Landfill Covers 

- Laboratory And Field Studies. U.S. Environmental Protection Agency, National Risk Management Research 

Laboratory. Cincinnati, OH, EPA/600/R-05/148, 2005.

3. Tolaymat, T. Landfill Bioreactor Performance, Second Interim Report. U.S. Environmental Protection Agency, 

National Risk Management Research Laboratory. Cincinnati, OH, EPA/600/R-07/060, 2007.

4. Peggs, I., Tolaymat, T. Non-Destructive Evaluation of Geomembrane Seam Bond Strength. U.S.

Environmental Protection Agency, National Risk Management Research Laboratory. Cincinnati, OH, 

EPA/600/R-09/070, 2009. 

5. Benson, C., Barlaz, M., Tolaymat, T. Bioreactor Landfills State-Of-The Practice Review. U.S. Environmental 

Protection Agency, National Risk Management Research Laboratory. Cincinnati, OH, EPA/600/R-09/071, 

2009.

ADJUNCT APPOINTMENTS/CONSULTANCY

• Adjunct professor at East Tennessee State University

• Executive board member at the Florida Center for Solid and Hazardous Waste Management

• Solid waste expert witness for Ohio EPA, 2006

• Solid waste consultant to the World Bank

• Solid waste consultant to USAID

AWARDS

• U.S. EPA Science Achievement Award in 2010 for service at the Salt River Regional Landfill awarded by 

EPA

• U.S. EPA Bronze Medal for Commendable Service in 2007 for service after hurricane Katrina awarded by 

EPA

• U.S. EPA Bronze Medal for Commendable Service in 2010 for service at the Fort Deveins Superfund Site 

awarded by ORD

• U.S. EPA Bronze Medal for Commendable Service in 2010 for service at the County Wide Landfill 

awarded by Region 5

• Level III Scientific and Technological Achievement Award 2007

• U.S. EPA/ORD Superior Accomplishment award every year between 2004 and 2010

INVITED PRESENTATION AND WORKSHOPS

• Developed and taught the Interstate Technology Regulatory Council (ITRC) bioreactor landfill internet 

training course in 2006

• Develop web content about bioreactor landfills in 2007 with the Hinkley Center for Solid and Hazardous 

Waste Management and the University of Florida (see http://www.bioreactor.org)

• Develop 2-day workshops on bioreactor landfills to for EPA Regions 5, 6, and 7 between 2005 and 2006

• Develop and coordinate bioreactor landfill section of Solid Waste Association of North America (SWANA) 

symposium in 2007. 

• Developed a bioreactor landfill workshop for the World Bank October, 2007.

• Invited by Taiwan Environmental Protection Agency to organize and host an international workshop in 

2005 and 2008.

• Environmental Factors and Surface Properties of Nanoparticles Governing Their Fate, Reactivity, and 

Mobility. Presented at 10th International Conference on the Biogeochemistry of Trace Elements, 

Chihuahua, MEXICO, July 13 - 18, 2009

• Monitoring Guidance for Bioreactor Landfills. Presented at SWANA Bioreactor Meeting, San Antonio, 

TX, March 22 - 25, 2005.

• Mercury Speciation In FGD: Assessing Transport And Bioavailability Risk. Presented at Research and 

Demonstration of Agricultural Uses of Gypsum and Other FGD Materials Workshop, St. Louis, MO, 

September 12 - 14, 2006.

• Metal Speciation in Soil, Sediment, and Water Systems Via Synchrotron Radiation Research. Presented at 

EPA Science Forum, Washington, DC, May 16 - 18, 2005.

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• Bioreactor Landfill Design. Presented at EPA Region 5 Bioreactor Landfill Workshop, Chicago, IL, 

September 27, 2005.

• Monitoring Approaches for Bioreactor Landfills. Presented at EPA Region 5 Bioreactor Landfill 

Workshop, Chicago, IL, September 27, 2005.

• Bioreactor Landfills, Theoretical Advantages And Research Challenges. Presented at EPA Region 5 

Bioreactor Landfill Workshop, Chicago, IL, September 27, 2005.

• Waste Stabilization Fundamentals For Bioreactor Landfills. Presented at EPA Region 5 Bioreactor Landfill 

Workshop, Chicago, IL, September 27, 2005.

EXTERNAL RESEARCH GRANTS

 Waste Management Inc. (WM) bioreactor landfill $200K in-kind per year (2001-present) 

 EPA’s Office of Solid Waste (OSW) “Fee for Service” $150K (2005)

 ORD’s national nanomaterials research initiative $480K (2007)

 Environmental Education and Research Foundation bioreactor landfill research $40K (2007)

 Environmental Education and Research Foundation bioreactor landfill research $40K (2007)

 Regional Applied Research Effort (RARE) R5 $50k per year for two years (2008-2009)

 Regional Applied Research Effort (RARE) R10 $110k (2008)

 Environmental Research and Education Foundation secondary aluminum processing waste research $186K 

(2009)

 Aluminum Association secondary aluminum processing waste research $186 (2009)

 U.S. AID/Jordan the remediation of a phosphate mining site in Amman, Jordan $5,000K (2010)

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RESPONDENT 

EXHIBIT 

RX-F-3 

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________ 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

COMPLAINT COUNSEL’S OBJECTIONS AND RESPONSES TO THE SUBPOENA 

DUCEUS TECUM TO DR. SHANE FREDERICK

Pursuant to Rules 3.34 and 3.38A of the Federal Trade Commission’s Rules of Practice 

for Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s Subpoena Duces Tecum (“Subpoena”) to Dr. Shane Frederick

(“Expert”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable for lack of Commission Seal. 

2. Complaint Counsel objects to the Subpoena to the extent that it is invalid and 

unenforceable because it is issued directly to Complaint Counsel’s expert and not to Complaint 

Counsel. 

3. Complaint Counsel objects to the Subpoena to the extent that it calls for the 

discovery of information beyond the scope of § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. See also In the Matter of Basic Research, No. 

9318, 2004 FTC LEXIS 237, *9 (F.T.C. Dec. 9, 2004); In re Dura Lube, No. 9292, 1999 FTC 

LEXIS 254 (F.TC. Dec. 15, 1999). 

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4. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

before expert disclosures are required in accordance with § 3.31A of the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this case.

5. Complaint Counsel objects to the Subpoena to the extent that it seeks information 

that is not relevant to the subject matter of the litigation and/or not reasonably calculated to lead 

to the discovery of information relevant to the allegations of the complaint, to the proposed 

relief, or to Respondent’s defenses. 

6. Complaint Counsel objects to the Subpoena to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

7. Complaint Counsel objects to the Subpoena to the extent that it is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive. 

8. Complaint Counsel objects to the Subpoena because the burden and expense of 

the proposed discovery outweigh its likely benefit. 

9. Complaint Counsel objects to the Subpoena to the extent it seeks information that 

is subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, that is exempt from 

disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is protected from 

disclosure by the privilege for information given to the FTC on a Pledge of Confidentiality, that 

is protected from disclosure under principles of financial privacy, that is subject to a protective 

order from another litigation, or that is subject to other applicable legal protection or privilege. 

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
10. Complaint Counsel objects to the Subpoena to the extent that it calls for materials 

outside the scope of discovery pursuant to Rule 3.31(c)(2).

11. By providing information in response to the Subpoena, Complaint Counsel does 

not concede that the Subpoena is valid, appropriate, or that such information is relevant, material, 

or admissible in evidence. 

12. Complaint Counsel’s objections and responses to the Subpoena are based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

13. Complaint Counsel will not produce information responsive to any request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or prosecution of this matter. 

14. Complaint Counsel will not produce information responsive to any request that 

has been provided to Respondent previously at any point during the investigation or prosecution 

of this matter.

15. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 

OBJECTIONS AND RESPONSES TO SUBPOENA SPECIFICATIONS

1. All documents received or possessed before engagement as an expert (consulting or 

testifying) in FTC Docket No. 9358 that concern ECM BioFilms, Inc., any past and 

present employee or principal of ECM, and/or the ECM additive. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Subject to and without waiving the foregoing General and specific 

objections, Complaint Counsel will produce all responsive, non-privileged documents 

within the scope of Rules 3.31 and 3.31A, and in accordance with the Scheduling Order 

and the Commission Rules. 

2. All documents, materials, correspondence, forms, marketing material, and testing used or 

referenced to form any and all opinions you may offer in this case. Production of all 

responsive materials should be submitted in accordance with the Commission’s Rules of 

Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

3. Regardless of the date, all sections of contracts, retainers, and/or agreements with Yale 

University concerning conflicts of interest and/or supplemental employment (such as 

consultation services in litigation). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

4. All correspondence between you and any employee and/or consultant of the 

Biodegradable Products Institute (“BPI”). 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

5. All correspondence with Dr. Ramani Narayan. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

6. All correspondence (not subject to attorney client or work-product privilege and received 

before engagement as an expert in FTC Docket No. 9358) with any employee and/or 

representative of the Federal Trade Commission concerning biodegradable plastics. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

7. All correspondence with any witness, person, and/or consultant used to help form any 

opinion you have in this case. Production of all responsive materials should be submitted 

in accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order 

in this matter. 

RESPONSE: Complaint Counsel objects to this Request because it seeks information 

required to be produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling 

Order. Complaint Counsel therefore objects to this Request because it unilaterally 

changes the scheduling order and advances Complaint Counsel’s deadline for production 

of Rule 3.31A(c) expert information by two months. The Scheduling Order dictates the 

time and manner of production for information covered by this Request. Subject to and 

without waiving the foregoing General and specific objections, Complaint Counsel will 

produce all responsive, non-privileged documents within the scope of Rules 3.31 and 

3.31A, and in accordance with the Scheduling Order and the Commission Rules. 

8. A listing of all shares of stock or ownership interests held by you in any company 

associated with plastics, biodegradable products or technologies, and/or compostable 

products or technologies 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

9. All documents, including papers, articles, dissertations, and publications that you 

authored, co-authored, or contributed to or that concerned work related to marketing 

research (including consumer perception) of trade consumers, e.g., corporate entities, 

distributors, wholesalers, etc., as opposed to end-consumers. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Subject to and without waiving the foregoing General and specific objections, Dr. 

Frederick has disclosed his Curriculum Vitae, which includes a list of all his scientific 

publications, papers, or presentations. Subject to and without waiving the foregoing 

General and specific objections, Complaint Counsel will produce all responsive, nonprivileged documents within the scope of Rules 3.31 and 3.31A, and in accordance with 

the Scheduling Order and the Commission Rules. 

10. Since January 1, 1999, copies of all papers, articles, dissertations, and publications 

authored by you that concern consumer perception that may help form your opinions and 

conclusions in this case. Production of all responsive materials should be submitted in 

accordance with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in 

this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information required to be 

produced under Rule 3.31A(c) and Paragraph 19 of the Court’s Scheduling Order. 

Complaint Counsel therefore objects to this Request because it unilaterally changes the 

scheduling order and advances Complaint Counsel’s deadline for production of Rule 

3.31A(c) expert information by two months. The Scheduling Order dictates the time and 

manner of production for information covered by this Request. Subject to and without 

waiving the foregoing General and specific objections, Dr. Frederick has disclosed his 

Curriculum Vitae, which includes a list of all his scientific publications, papers, or 

presentations and Complaint Counsel will produce all responsive, non-privileged 

documents within the scope of Rules 3.31 and 3.31A, and in accordance with the 

Scheduling Order and the Commission Rules.

11. Regardless of the date, if you have ever been a defendant or a plaintiff in a legal 

proceeding, copies of all complaints, answers, motions, and transcripts (deposition, 

hearing and trial) involving you in your professional capacity, along with all orders 

issued by the courts in those proceedings. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

12. All conflict of interest forms or agreements signed by you. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. 

13. If you have ever served as an expert in any other proceeding involving the Federal Trade 

Commission, copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter. 

RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Frederick has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Complaint Counsel will produce all responsive, 

non-privileged documents within the scope of Rules 3.31 and 3.31A, and in accordance 

with the Scheduling Order and the Commission Rules. 

14. If you have ever served as an expert in any other legal proceeding involving plastics 

technologies, produce copies of all expert reports and testimony given by you in those 

proceedings. Production of all responsive materials should be submitted in accordance 

with the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this matter.

15. RESPONSE: Complaint Counsel hereby objects to this Request to the extent that it 

seeks information not likely to lead to relevant evidence, and to the extent that this 

unlimited request is overbroad and burdensome under 16 CFR § 3.31(c)(2)(i)-(iii). 

Complaint Counsel objects to this Request because it seeks information beyond the scope 

of information to be produced under Rule 3.31A and Paragraph 19 of the Court’s 

Scheduling Order. Complaint Counsel objects to this Request because it seeks 

information required to be produced under Rule 3.31A(c) and Paragraph 19 of the 

Court’s Scheduling Order. Complaint Counsel therefore objects to this Request because 

it unilaterally changes the scheduling order and advances Complaint Counsel’s deadline 

for production of Rule 3.31A(c) expert information by two months. The Scheduling 

Order dictates the time and manner of production for information covered by this 

Request. Subject to and without waiving the foregoing General and specific objections, 

Dr. Frederick has disclosed all prior cases in which the Expert has testified or has been 

deposed within the preceding four years. Expert has not previously served as an expert.

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
Dated: April 25, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 326-2185 

 Jonathan Cohen (202) 326-2551 

 Elisa K. Jillson (202) 326-3001

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop M-8102B 

Washington, DC 20580

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
CERTIFICATE OF SERVICE

I hereby certify that on April 25, 2014, I caused a true and correct copy of the paper 

original of the foregoing document to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

I further certify that I possess a paper copy of the signed original of the foregoing document that 

is available for review by the parties and the adjudicator.

April 25, 2014 /s/ Katherine Johnson 

 Katherine Johnson 

Resp. Mot. for Leave 

Exh. RX-F-3

PUBLIC DOCUMENT
RESPONDENT 

EXHIBIT 

RX-G 

Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

United States Patent [19J 

McCarthy et al. 

(54) POLYACTIC ACID-BASED BLENDS 

[75] inventors: Stephen P. McCarthy, Tyngsboro; 

Richard A. Gross, Chelmsford; 

Wenguang Ma, Lowell, all of Mass. 

[73] As.signee: University of Massachusett~. Boston, 

Mass. 

[21] Appl. No.: 825,810 

l22J Filed: Apr. 3, 1997 

[51) Int. Cl.

6 ........................ .. .. . C08F 20/00; B29D 22/00 

[52) U.S. Cl . .......................... 525/437; 525/450; 604/212; 

604/370; 604/403; 604/408; 428/35.2; 428/35.7; 

428/36.92 

[58] Field of Search ..................................... 525/437, 450; 

604/403, 212, 358, 370, 408; 428/34.1, 

35.2, 35.7, 36.92 

[56] References Cited 

U.S. PArENT DOCUMENTS 

4,095,600 6/1978 Casey el al. ............................ 525/437 

5,216,050 6/1993 S[nclair ................................... 524/108 

5,252,642 10/1993 S[nclair el al. ......................... 524/108 

5,685,540 11/1997 Kaki7..awa ................................ 525/444 

FOREIGN PArENT DOCUMENTS 

96-231837 2/1995 Japan . 

111111111111111111111111111111111111111111111111111111111111111111111111111 

US005883199A 

[11] Patent Number: 

[45] Date of Patent: 

5,883,199 

Mar. 16, 1999 

OTHER PUBLICAI'IONS 

Cai et al., "Effects of Physical Aging, Crystallinity, and 

Orientation on the Enzymatic Degradation of Poly(Laclic 

acid)", J. Polymer Science, 34:2701-2708 (1996). 

Gajria et a!., "Miscibility and biodegradability of blends o( 

poly(lactic acid) and poly(vinyl acetate)", Polymer, 

37:437-444 (1996). 

Sheth et al., ''Biodegradable Polymer Blends of Polylactic 

Acid (PIA) and Polyethylene Glycol (PEG)", ANTEC '95, 

1829- 1833 (1995). 

Younes et al., Phase Separation in Poly(Etbylene Glycol)/ 

Pol y(Lactic Acid) Blends, Polym. J., 24(8): 7 65-773 (1988). 

Primary Examiner-Nathan M. Nutter 

Attorney, Agent, or Firm-Fish & Richardson P.C. 

[57] ABSTRACT 

Biodegradable blends including a first, poly lactic acid-based 

polymer or copolymer, and a second polymer or copolymer 

including one or more polyesters, e.g., an aliphatic polyester 

or a polyester of one aliphatic Cz to Cz0 diacid or of a 

combination of two more different aliphalic c2 to c20 

diacids, wherein I he first and second polymers are present in 

a ratio of 9:1 to 1:9, arc described. 

25 Claims, 7 Drawing Sheets 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 1 of 7 

ro r-----------------------~ 

60 

50 r-PLA A70830 A5~850 

- 90810 \ · / A30870 ci: I A80820 ;,' _,/ ./ 

== 40 ... [_ . · · ·' / / I 

J• / •· I tf ,t .=-.. -=-.. ~ ~ -~ .. _,..., 

~ 30 : I 

(I) ·".- .- . - .- . -

20 ,' 8/0#3000 

10 

100 200 300 400 500 600 700 800 

Strain,% 

FIG. 1 

ro ~----------------------~ 

60 

\_8/0#3000 

20 30 40 50 

Strain,% 

FIG. 2 

5,883,199 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 2 of 7 5,883,199 

1.5 r-------------

1.2 

~ (.:J 0.9 

....... ~ 

-§ 

0 0.6 

:s 

0.3 

0 0 10 20 30 40 50 60 70 80 90 100 

Bionol/e Content, wt% 

FIG. 3 

60 ~--------------

~ 40 

~ ~ 30 (I) 

Q) 

~ 

('.) 20 

10 

0 

0 10 20 30 40 50 60 70 80 90 100 

Bionolle # 3000 Content, wt% 

FIG. 4 

+ At Yield 

o At Break 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 3 of 7 

1000 r--------------

5,883,199 

+At Yield 

x At Break 

20 40 60 80 100 

Bionolle #3000 Content, wt% 

FIG. 5 

150 

30 

0 0 10 20 30 40 50 60 70 80 

Bi0#3000 Content, wto/o 

FIG. 6 

90 100 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 4 of 7 5,883,199 

300000--------------......, 

·a 2ooooo 

tJ) -§ 150000 ~ 

~ 100000 

50000 

20 40 60 80 100 

Bionolle Content, wt% 

-<>- BI0#6000 Blends, Aging for 7 Days 

---o--- 810# 7000 Blends, Aging for 7 Days 

.......... 810#6000 Blends, Aging for 21 Days 

- -11- BIO# 7000 Blends, Aging for 21 Days 

FIG. 7 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 5 of 7 5,883,199 

400~------------------------~ 

#. 

350 

300 

t:::"' 250 

.a 

~ 200 

c;:, 

~ 150 

...., 100 

50 

0 0 10 20 30 40 50 60 70 80 90 100 

Bionolle Content, wt% 

+ 810#6000 Blends, Aging for 7 Days 

--•-· 810#7000 Blends, Aging for 7 Days 

···-!:::.···· 810#6000 Blends, Aging for 21 Days 

- -X- 810# 7000 Blends, Aging for 21 Days 

FIG. 8 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 6 of 7 5,883,199 

?f?. 1000 +PLA 

.::.:,"" X A70830 ~ 

~ I 810#3000 

Q:l 

• A90BIO -~ 100 ::+:: A50850 r:: 

Q 

:::: .&. A80820 

~ r:: 

e A30870 

..!: 

L.&.j 10 

1

0 10 20 30 40 50 60 70 80 

Aging time, day 

FIG. 9 

30 

FIG. 10 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

U.S. Patent Mar. 16, 1999 Sheet 7 of 7 

120r------------. 

100 

20 

10 20 30 40 50 

Testing Time, Day 

FIG. 11 

80 ~-------------. 

70 

60 ~ i 50 

~f 40 

0 

...., 

.... 30 J 20 

10 

5 10 15 20 25 30 35 

Degradation time, day 

FIG. 12 

5,883,199 

0 PLA 

0 A70830 

• 810#3000 

0 A908/0 

• A50850 

!::.. A80820 

• A30870 

0 PLA 

X A70830 

• 810#3000 

!::.. A50850 

~ A80820 

• A30870 
Resp. Mot. for Leave 

Exh. RX-G

PUBLIC DOCUMENT

5,883,199 

1 

POLYACTIC ACID-BASED BLENDS 

STATEMENT AS TO FEDERALLY SPONSORED 

RESEARCH 

Funding for the work described herein was partially 

provided by the National Science Foundation under grant 

number EEC-9314562. The Government bas certain rights 

in the invention. 

BACKGROUND OF THE INVENTION 

The invention relates to polylactic acid-based blends. 

Succinic acid and diols can form biodegradable aUpbatic 

polyesters and copolyesters through coupling and polycondensation reactions. TI1e main unit structure resulting from 

these reactions is: 

Examples of biodegradable aliphatic polyesters and 

copolyesters having the unit structure s hown above are 

polybutylene succinate (PBSU), where m is 4 and n is 2, 

polyethylene succinate (PESU), where m is 2 and n is 2, a 

random copolymer of polybutylene succinate adipate 

(PBSU-AD) where m is 4 and n is 2 or 4, and polyethylene 

succinate ad.ipa te (PESU-AD) where m is 2 and n is 2 or 4. 

These polyesters and copolycstcrs have interesting properties including biodegradability, mell proccssabil.ity, and 

therma l and chemical resistance. One of these, 

BIONOLLE®, a comme rc ia lly availab le alipbatic 

succinate-adipa tc polyester, bas excellent physical properties. For example, tbe thermal resistance of BIONOLLE is 

equivalent lo that of polyethylene, but the yield strength is 

higher than polyethylene. The stiffness of BIONOLLE is 

between high density and low density polyethylene (LOPE). 

Particularly for BIONOLLE #3000, its impact strength is 

equivalent to that of LOPE, while its elongation at break is 

higher than tha t of LOPE. 

Polylactic acid can be made from lactic acid (lactate). 

Lactic acid is a natural molecule that is widely employed in 

foods as a preservative and a flavoring agent. It is the main 

building block in the chemical synthesis of the polylactide 

family of polymers. Although it can be synthesized 

chemically, lactic acid is procured principally by microbial 

fermentation of sugars such as glucose or hexose. These 

sugar feed stocks can be derived from potato skins, corn, and 

dairy wastes. The lactic acid monomers produced by fermentation are then used to prepare polylactide polymers. 

2 

from renewable sources, and have been classified as "wa ter 

sensitive," because they degrade slowly compared with 

''water soluble" or ''water swollen" polymers. However, 

while polylactic acid is a biodegradable polymer with gcn5 erally good processability, it is brittle, and the brittleness 

increases with time due to physical aging, i.e., densification 

of the polymer at a molecular level. 

S UMMARY OF 111E INVENTION 

10 The invention is based on the discovery that polylactic 

acid (PLA)-based polymers or copolymers and polyme rs or 

copolymers of polyesters, e.g., polybutylcnesuccioatc, polybutylene succinatc-adipate o r polybutylene succinateterephtbalte (wherein tbe diacids of the polyester would be, 

15 for example, succinic acid, adipic acid. terephthal.ic acid, or 

any combinations thereof), can be used to make new biodegradable blends that, compared to PLA, bavc superior 

tens ile and mechanical properties such as stiffness, 

toughness, and elongation to break, as well as excellent 

20 biodegradability and aging properties. 

In general, tbc invention features a biodegradable blend 

including a first, polylactic acid-based polymer or 

copolymer, and a second polymer or copolymer including 

25 one or more polyesters, e.g., an aliphatic polyester or a 

polyester of one aliphatic C2 to Czo diacid or of a combination of two more different aliphatic C2 to C20 d.iacids, 

wherein the first and second polymers are present in a ratio 

of 9:1 to 1:9, by weight, e.g., 5:1 to 1:5, or 2:1 to 1:2, or 1:1. 

30 For example, the first polymer cao be a homopolymer of 

polylactic acid, e.g., D-polylactic acid, L-polylactic acid, 

D,L-polylactic acid, meso-polylactic acid, and any combinatio n of D-polylactic acid, L-polylactic acid, D,Lpolylactic acid and meso-polylactic acid. In addition, the 

35 first polymer can be a copolymer having at least 50, 60, 70, 

or more, up to 100 percent, by weight, of polylactic acid . 

The second polymer or copolymer can be, for example, a 

pol ybut y lenesuccina te bomopol ymer, pol ybut y lencad.ipate 

homopolymer, polybutylcnesuccinatc-adipate copolymer, 

40 polyethylenesuccinale homopolymer, polyethylcncadipate 

homopolymer, or a polyeibylencsucci nate-ad ipate 

copolymer, or a copolyester of an aliphatic polyester and up 

to 50 percent, by weight, of an aromatic polyester, such as 

tercphthalate, as long as the overall co polyester (and second 

45 polymer) is biodegradable. 

The blend can further include a cornpatibilizer including 

one or more polyesters, polyetbers, or polyvinyl alcohols. 

The new biodegradable blends bave an elongation at 

break of at least 10 percent, for example, at least 50, 100, 

50 200, 300, 400, and up to 500 percent or more. The blends 

also have an elongation at break of at least 10 percent, e.g., 

50, 100, 200, 300, 400, and up to 500 percent or more after 

70 days of aging. lo addition, the blends have a toughness of 

Lactic acid exists essentially in two stereoisomeric forms, 

which give rise to several morphologically distinct polymers: D-polylactic acid, L-polylactic acid, D,L-polylactic 

acid, meso-poly lactic acids and any comb.inations of thereof. 

D-polylactic acid and L-polylactic acid arc stcreoregular ss 

polymers. D,L-polylactic acid is a racemic polymer obtained 

from a mixture of D- and L-lactic acid, and meso-poly lactic 

acid can be obtained from D,L-lactide. The polymers 

obtained from the optically active D and L monomers are 

semicrystalline materials, but the optically inactive D,L- 60 

polylactic acid is amorphous. 

at least 10 MJ/m3 , e.g., 20, 40, 60, and up to 120 MJ/m3 or 

more. 

The second polymer can be present in U1e new biodegradable blends as a co-continuous phase with tbe first polymer, 

and at least the first or the second polymer or copolymer is 

present in a continuous phase in the blend. 

The first, poly lactic acid-based polymer or copolymer can 

be a homopolymer of lactic acid or a block, graft, or random 

copolymer of lactic acid having the general formula: Lactic acid bas a hydroxyl group as well as a carboxylic 

group, and hence can be easily converted into a polyester. 

These polyesters bavc some potential advantages when 

compared to other biodegradable polymers such as polyhy- 65 

roxybutyrate and polycaprolactooe, as to their strength, 

thermoplastic behavior, biocompatibility, and availability 

wherein R1 is a lactic acid unit, R., is caprolactone, 

g lycolide, trimethylene carbonate, dioxanone, bu tyryl 
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3 

lactone, or ethylene o xide, a is 10 to 10,000, e.g., 100 to 

7,500, or 1000 to 5000, and b is 0 to 10,000, e.g., 100 to 

7 ,500, or 1000 to 5000. 

The polyester of the second polymer or copolymer can 

have the formula: 

--...[O- (Ct-lz),.-0-C- (CH!)n- C- 1,,...._ II II 

5 

4 

Other features and advantages of the invention will be 

apparent from the following detailed description, and from 

the claims. 

BRIEF DESCRIP110N OF THE DRAWINGS 

FIG. 1 is a graph showing complete stress-strain curves of 

polylactic acid, BIONOLLE#3000, and their blends. 

0 0 

wherein m is 2 to 20, e.g., 4, 8, or 12; n is 2 to 20, e.g., 2 

and 4, or 6, or 8; and N is 10 to 10,000, e.g., 500, 3,500, or 

5000. 

FIG. 2 is a graph showing stress-strain curves of poly10 lactic acid, BIONOLLE#3000, and their blends in the strain 

range of 0 to 50%. 

FIG. 3 is a g raph showing stiffness (modulus) of polylactic acid, BIONOLLE#3000, and their blends. 

FIG. 4 is a graph showiog stress at yield and break of 

polylactic acid, BIONOLLE#3000, and their blends. 

FIG. 5 is a graph showing percent elongation at yield and 

break of polylactic acid, BIONOLLE#3000, and their 

blends. 

The new biodegradable blends can include the first, 

poly lactic acid-bao;ed polymer or copolymer as a polylactic 

acid homopolymer, and the second polymer or copolymer as 15 

a polybutylenesuccinatc homopolymer, polybutyleneadipate 

homopolymer, polybutylenesuccinate-adipate copo lymer, 

polyethylenesuccinate homopolymer, polyethyleneadipate 

homopolymer, or a polyetbylcnesuccinate-adipate copolymer. FIG. 6 is a graph showing toughness of polylactic acid, 20 BIONOLLE#3000, and their blends. In another embodiment, the invention features articles 

manufactured from the new biodegradable blends. For 

example, the invemion features s heets or films, bags, 

containers, such as bottles and disposable cups, disposable 

diapers, and other items including the new blends. 25 A "polylactic acid-based polymer or copolymer" is a 

homopolymer or a copolymer having at least 50% by weight 

of poly lactic acid. As used herein, the term "polylactic acid," 

without further designation, includes any one or more of 

four morphologically distinct polylactic acid polymers: 

D-polylactic acid, L-polylactic acid, D,L-polylactic acid, 30 

and meso-polylactic acid. "D-polylactic acid" and 

"L-polylaclic acid" are dextro-polylactic acid and levopolylactic acid, respectively, and both of them are optically 

active polymers that rotate a light vector when transmitted 

through tbe polymer. "D,L-polylactic acid" is a racemic 35 

polymer, i.e., a copo lymer of D-polylactic acid and 

L-polylactic acid having a well-defined conformation of Dand L-polylactic acid units. "Meso-polylactic" is a random 

copolymer of D-polylactic and L-polylactic. An "aliphatic 

polyester of a diacid and a dial" is a polyester formed by the 40 

reaction of a diacid and a diol. 

lbe invention provides several advantages. Polylactic 

acid by itself is a britt le material having poor toughness and 

low elongation to break, and these properties worsen with 

time due to its physical aging behavior. Furthermore, the 45 biodegradability of poly lactic acid is slow. The new blends 

overcome these deficiencies of polylactic acid. Moreover, 

the new blends arc environmentally friendly and commercially attractive for making biodegradable plastic films, 

sheets, and other plastic products made by conventional 

processing methods such as blown film, extrusion, and 50 

injection molding. These plastic products can be used fo r 

food packaging, compost bags, and other disposable items. 

The new blends provide an entry for polylact ic acid in the 

potentially large market of biodegradable polymers. 

Unless otherwise defined, all technical and scientific 55 

terms used herein have the same meaning as commonly 

understood by one of ordinary skill in the art to which this 

invention belongs. Although methods and materials similar 

or equivalent to those described herein can be used in the 

practice or testing of the present invention, suitable methods 60 

and materials are described below. All publications, patent 

applications, patents, and other references mentioned herein 

are incorporated by reference io their entirety. In case of 

conHict, the present specification, including defioitions, wiiJ 

control. In addition, the materials, methods, and examples 65 

described herein are illustrative only aod not intended to be 

limiting. 

FIG. 7 is a graph showing stiffness (modulus) of polylactic acid, BIONOLLE#6000, BIONO LLE#7000, and their 

blends. 

FIG. 8 is a graph showing percent elongation at yield and 

break of po lylac ti c ac id, B l ONOLLE#6000, 

BIONOLLE#7000, and their blends. 

FIG. 9 is a graph showing percent elongation at break of 

polylactic acid, BIONOLLE#3000, aod their blends as a 

function of aging. 

FIG. 10 is a schematic of a biometer for soil biodegradation testing. 

FIG. 11 is a g raph showing net perce nt biodegradation of 

polylactic acid, BIONOLLE#3000, and their blends as a 

fuoction of test time in soil. 

FIG. 12 is a graph showing net percent weight loss clue to 

biodegradation of polylactic acid, BIONOLLE#3000, and 

their blends as a fu nction of test time in compost. 

DETAILED DESCRIPTION 

Polylactic acid-based polymers and polymers of 

polyesters, e.g., aliphatic polyesters of diols and diacids, can 

be used to make new blends that have surprisingly good 

mechanical and biodegradable properties compared to polylactic acid alone. ·n1e new blends provide tough, biodegradable plastics that can be used to make biodegradable plastic 

fi lms, sheet5, and other products made by conventional 

blown film, extrusion, and injection molding processing 

methods. These plastic products cara be used for food 

packaging, compost bags, and other disposable items. 

Compared to polylactic acid, the new blends provide a 

large increase in elongation (e.g., from 5% to 500%), 

toughness enhancement (from less thaD 10 MJ/m3 to more 

than 120 MJ/m3

), and increased biodegradation rate. The 

modulus of these blends decreases wit.h increasing amount 

of the aliphatic polyester, i.e., Bionolle#3000 (from 1.3 GPa 

of poly lactic acid to 0.3 GPa of Bionollc#3000), and elongation to break increases witb increasing amount of the 

aliphatic polyester (e.g., from 5% to 500%). The blends with 

more than 20% by weigbt of Bionolle#3000 possess toughness of more than 70 MJ/m3 , more than 200% elongation at 

break and other excellent tensi le properties, which are 

retained eveo after the blends have aged for 70 days in the 

temperature range of -15° to 60° C. Compared to poly lactic 

acid, these blends also have a relative ly high degradation 

rates io soil and composting environment. 
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5 

Materials 

1be main components needed to make the new blends are 

polylactic acid-based polymers and polyesters, e.g., aliphatic polyesters of diols and diacids. Optionally, a compatibilizer may be added to the blends. 

lbe simplest polylactic acid-based polymer is polylactic 

acid, which can be obtained from, e.g., Cargill Inc. (EcoPla 

Division, Minnesota). The polylactic acid used for the 

experiments described herein bad an 8% meso content (96% 

L) and a number average molecular weight of 70,100. Other 

poly lactic-based polymers can also be used to make the new 

tough blends with alipbatic polyesters of diols and diacids. 

For example, a poly lactic-based polymers can be eitber a 

homopolymer of lactic acid or a block, graft, or random 

copolymer of lactic acid baving tbe general formula: 

wherein R1 is a lactic acid unit and ~ is caprolactone, 

glycolide, trimetbylene carbonate, dioxanone, butyryl 

lactone, or etbylene oxide. Wben the polylactic acid-based 

polymer is a homopolymer, tbe b term is zero in the general 

formula . 

Commercially available aliphatic polyesters of diols and 

diacids include the BIONOLLE family of polymers, e.g., 

BIONOLLE #1000, #2000, #3000, #6000, and #7000, 

which can be obtained from, e.g., Sbowa Highpolymer Co., 

Lid, Japan. Bionolle #3000, #6000, and #7000, which have 

molecular weights (Mw) of 23,300, 250,000 and 270,000, 

respectively, and melting points of about 91°, 102°, and 89° 

C., respectively, were used to make the new blends which 

were tested as described below. Otber aliphatic polyesters of 

diols and diacids can also be used. 

Examples of dials in the alipbatic polyesters include any 

aliphatic diols including ethylene glycol and 1,4-butanediol. 

Examples of diacids in the aliphatic polyesters include any 

individual diacids or combinations of two or more alipbatic 

diacids, in the range of Cz to c20• in a weight percent from 

0 to 100, e.g., oxalic acid, malonic acid, succinic acid, 

g lutaric acid, adipic acid, n-butylmalonic acid, succinic acid, 

a:r..elaic acid, sebacic acid, ethyl dietbylmalonate and dibutyl 

succinate. Specific aliphatic polyesters include polybutylene 

succinate (PBSU), polyethylene succinate (PESU), random 

copolymers of polybutylene succinate adipatc (PBSU-AD), 

and polyethylene succinate adipale (PESU-AD). 

Sample 

Code 

PLA 

wl % 

BtONOLLI! 

wl % 

Among other fea tures of the aliphatic polyesters used in 

6 

for example 10,000 to 500,000 or 15,000 to 250,000. The 

range of meliing points of tbe poly lactic acid-based polymer 

and aliphatic polyester that can be used is 50° to 300° c., fo r 

example 60 to 200° C., e.g., 80° to 150° C. 

5 Besides a purely alipbatic polyester of diols and diacids, 

a copolyester of an aliphatic polyester and an aromatic 

polyester can be used so long as the copolyester is biodegradable and imparts ductility to polylactic acid-based polymers. An example of an aromatic polyester that can be used 

tO (in up to 50 percent by weight) io tbe copolyester is 

polyethylene terepbtbalate. Other aromatic polyesters can be 

used. 

Examples of compatibilizers include AB block or AB 

graft copolymers that consist of a polylactic acid-based 

15 polymer or a polymer which is miscible with the poly lactic 

acid-based polymers, and an aliphatic copolyester of polymers based on diols and diacids or polymers which are 

miscible with these aliphatic copolyesters. These compatibil.izers can be added to the blend in an amount ranging 

20 t'rom, e.g., 0.1 to lO percent, e.g., 2, 3, or 5 percent. 

Preparing Polylactic-Based Polymer Blends 

Standard melt processing equipment and processing conditions can be used to prepare the new blends. Examples of 

polymer melt processing equipment that can be used to 25 make the new blends include melt mixers (Banbury mixer), 

blenders, extruders for sheet, film, pro(ile and blown-film 

extrusion, vulcanizers, calenders, and spinnerets for fiber 

spinning, molding, and foaming. 

The polylactic acid-based polymers and the polymers or 30 

copolymers of polyesters were carefully dried at 40° C. 

under vacuum for at least 24 hours to minimize hydrolytic 

degradation of polylactic acid-based polymer during tbe 

subsequent melt processing. Blending was done on a single 

screw extruder operating between 150° aod 160° C. and a 

35 - screw speed of 50 rpm. Each sample was extruded twice. 

This protocol can be varied as long as tbe polymers and 

polyesters form a conti nuous or co-continuous pbase blend. 

The composition and sample code for each blend made up 

40 of polylactic acid and BlONOLLE are reported in Table 1.. 

The A in each sample code refers to tbe percentage o( 

polylactic acid-based polymer in the blend, and tbe B refers 

to the polyester, BIONOLLE#3000, BIONOLLE#6000, or 

BIONOLLE#7000, which were used to make the new 

blends with polylactic acid. 

TABLE 1 

PLA J\90B10 A801320 A70B30 A50B50 A30B7n Bio#_ 

100 90 80 70 50 30 0 

0 10 20 30 50 70 100 

Sample Preparation 

the new blends are that these polyesters are biodegradable 

and tbat tbey impart ductiHty to polylactic acid-based polymers by forming a cootinuous or co-continuous pbase in tbe 

morphology o( the blends. Tbe polylactic acid-based poly- 60 

mers and the aliphatic polyesters are immiscible, but synergistically compatible in tbe blends, i.e., the properties of 

tbe blends are greater than tbat of the mixtures of polylactie 

acid-based polymer and aliphatic polyester determined by 

the additive rule of mixture. The range of weight average 65 

molecular weights of the poly lactic acid-based polymer and 

Rectangular shaped samples of each blend were prepared 

to enable uniform testing of characteristics. The tensile test 

samples were made according to a modified specification in 

ASTM D 882. In particular, samples of about 0.3 mm 

thickness, 12.7 mm width, and 38.1 mm length between the 

grips of the tensile test machine holding the sample, i.e., 

gage length, were compression molded at 155° C. and 

cooled in a cooling press macbine at 20° C. and 700 psi. Thin 

film samples were made by melt blending on an extruder and 

the aliphatic polyester that cao be used is 5,000 to a million, tben compression molding to 0.3 mm thickness. The films 
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7 were cut into 20 mrnx20 mm samples for testing biodegradation in soil and in composting environments. 

Testing Methods 

8 

Specifically, tensile testing was done by using an lnstron 

Tensile machine, model 1137, al grip separation rates of 0.5 

and 2.0 inches/minute. 

Tensile test properties of blends were obtained 1, 2, 4, 7, Tensile test properties of blends were obtained 1, 2, 4, 7, 

14, 21, 35, 40, and 70 days after making the samples. During 

this interim time period between making and testing, tbe 

samples were physically aged at room temperature and 

atmospheric pressure. The tensile test was done according to 

ASTM D 882 with tbe following modifications. The grip 

separation used was 38.1 mm (1.5 inches) instead of 50 mm 

(2 inches), and tbe grip separation rate was 2 inches/minute 

even for samples with elongation at break greater than 

100%, while ASTM D 882 specifics that the grip separation 

rate be 20 inches/minute for samples with elongation at 

break greater than 100%. 

5 14, 21, 35, 40, and 70 days after making the samples. During 

tbis interim time period between preparing and testing, the 

samples were physically aged at room temperamre and 

atmospheric pressure. 

The stiffness of the blends was determined from the slope 

10 of the initial linear portion of the stress-strain curve. Stress 

was measured as the nominal stress defined as fo rce per unit 

original area. Strain and e longation are used as synonymous 

terms, and tbey were measured as percent change in length 

per unit length of a sample. The yield point of the blends, 

15 i.e., where a large inelastic deformation starts (yielding 

occurs), but the material continues to deform and absorb 

energy long beyond that point, was .characterized as the 

intersection of the initial linear portion of the stress-strain 

Biodegradation testing in an artificial soil environment 

was performed on films of the blends using the respirometric 

method developed at the NSF Biodegradable Polymer 

Research Center, University of Massachusells Lowell and 

designated UML-7645. ThLs test method covers tbe deter- 20 

mination of the degree and rate of aerobic biodegradation of 

synthetic plastic materials (including formulation additives) 

in contact with moist soil under controlled laboratory condition. Carbon dioxide production, as a fraction of tbe 

measured theoretical carbon content of the test materials, is 25 

reported as a function of tin1e. The test is designed to 

determine the biodegradability of plastic materials, relative 

curve and the Hat horizontal portion of the stress-strain 

curve. 

The toughness of the blends, which can be defined as the 

tensile energy to break accord.ing to ASTM D 822, was 

measured according to ASTM D 822 by integrating the area 

under the stress-strain curve. 

Speci(jcal.ly, a load range such that a specin1en would fail 

within its upper two thirds was selected. The cross sectional 

area of the specimen at several points along its length was 

measured to an accuracy of 0.0025 mm. The initial grip 

separation was at 38.1 mm. The rate of grip separation rate 

to that of a comparative standard material, in an aerobic 

environment. The test applies to all plastic materials that do 

not inhibit bacteria and fungi present in soil. 

Biodegradation testing in an artificial compost environment was conducted on film samples in a simulated municipal compost as described in Example 4. 

In addition, morphology of tbe blends was observed under 

polarizing optical and scanning electron microscopy. 

30 was set at 0.5 inches/minute for samples with less than 20% 

elongation at break, and at 2 inches/minute for samples with 

more tbao 20% elongation at break. The load cell of the 

Jnstron tester was balanced, zeroed, and calibrated for 

measuring and recording force. The rectangular test speciUses of Polylactic Acid-Based Blends 

35 men was placed in the grips of the Tnstron testing machine, 

taking care to align the long axis of the specimen with an 

imaginary line joining the points of attachment of the grips 

to the machine. The grips were tightened evenly aod firmly 

Like wood and paper, these blends are stable in the 

atmosphere but biodegradable in compost, in moist soil, in 

water wilh activated sludges, and in the sea, where a large 

number of microorganisms are present. These blends can be 40 

incinerated with only slight damage to the furoace since the 

heat of combustion is relatively low, and no toxic gases are 

generated. The blends made by this invention can be used to 

make biodegradable plastic film, sheets, aod other products 

by conventional processing methods such as blown film, 45 

extrusion, and injection molding methods. The resulting 

blends can be used to manufacture bags, food packaging, 

laminated papers, food trays, fishing line, net, rope, diapers, 

disposable medical supplies, sanitary napkins, shampoo, 

drug, cosmetic, and beverage bottles, cutlery, brushes, 50 

combs, molded and extn•ded foamed articles such as packing material and cups, and cushions for flexib le packing. 

These blends provide not only the excellent processibility of 

polyethylene, but also posses excellent properties like those 

of polyethylene terephthal ate. ln addition, these blends can 55 

be processed into films that arc beat-sealable, unlike polyethylene tcrephthalate. 

EXAMPLES 

The following examples further describe the invention 60 

without limitation. 

Example 1 

Tensile Testing 

to the degree necessary tO minimize slipping of the specimen 

during test. The lnstron machine was started and stress 

versus grip separation was recorded. 

Tensile stress (nominal) was calcu lated by dividing the 

load by the original mininlum cross-sectional area of the 

specimen in the loading direction. The modulus value was 

determined from the initial slope of the stress-strain curve. 

Tensile strength (nominal) at break was calculated in the 

same way as tensile stress except that the load at break was 

used in place of the maximum load. Percentage e longation 

at break was calculated by dividing the extension (i.e., grip 

separation) at the moment of rupture of the specimen by the 

initial lengtb of the specimen between t be grips. Yield stress 

and percentage elongation at yield were determined by 

recording the stress and percent elongation attbe yield point, 

which was established as noted above. 

Tensile stress-strain curves of blends of Bl0NOLLE#3000 and poly lactic acid are sllown in FIGS. 1 and 

2. Tbcse blends were aged for 14 days. FIG. 1 shows the 

complete stress-strain curves of samples coded in Table 2 as 

PLA, A90B10, A80B20, A70B30, A50B50, A30B70, and 

Bl0#3000. FIG. 2 is a expanded view of the LOitial portion 

of the stress-strain curves in FIG. 1, i.e., up to a strain of 

50%. 11le excellent strain hardening characteristics of these 

blends is exhibited in FIG. 1 by tbe rapid increase in stress 

prior to break. For example, strain hardening in A30B70 

The tensile test was done according to ASTM D 882 with 

the modifications in the sample length between grip separa tion aod the grip separation rate, as stated above. 

65 occurred in tbe strain range of 300-500%, and the corresponding increase in stress was from about 25 MPa to about 

50 MPa. 
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9 

FIG. 2 shows that both stiffness and stress at yield 

decrease with increasing 1310NOLLE#3000 content, while 

elongation at yield and at break increase with increasing 

BIONOLLE#3000 content Based on the data in FIGS. 1 and 

2, FIGS. 3 and 4 show modulus (i.e., stiffness) and stres.s at 

yield and break, respectively. The outstanding strain hardening behavior of these blends was further exemplified by 

the increasing diJierence in stress at break and stress at yield 

with increasing BIONOLLE#3000 content. 

FIG. 5 shows that the elongation at both yield and break 

of polylaclic acid/BIONOLLE#3000 blends increase with 

BIONOU...E#3000 content, with a dramatic increase at 

break above 10 percent BIONOLLE. FIG. 6 shows that the 

toughness of polylactic acid/BIONOLLE#3000 blends 

increases as a function of BIONOLLE#3000 content above 

10 percent. Both FIGS. 5 and 6 show a surprising and 

unexpected increase in the elongation at break of the blends 

when the BIONOLLE#3000 content was increased to over 

about 10 weight percent to about 30 weight percent in the 

polylactic acid/BTONOLLE#3000 blends, and in toughness 

of the blends when the BIONOLLE#3000 content was 

increased to over about 10 eight percent to about 40 or 50 

weight percent in the polylactic acid/BIONOLLE#3000 

blends. 

Tensile properties (modulus and elongation at break) after 

aging for 7 and 21 days as a function of BIONOLLE#6000 

and BIONOLLE#7000 content are s hown in FIGS. 7 and 8 . 

The modulus decreases (FIG. 7) and the elongation at break 

increases (FIG. 8) with increasing BIONOLLE#6000 and 

B!ONOLLE#7000 content. As the aging time increases from 

7 io 2l days, the modu lus s hows a slight increase (FIG. 7), 

and the elongation at break shows a slight decrease (FIG. 8). 

Since BIONOLLE#7000 is a softer polymer than 

BIONOLLE#6000, polylactic acid/BIONOLLE#7000 

blends have a lower modulus and a higher elongation at 

break compared with those of polylactic acid/ 

BIONOLLE#6000 blends. 

Unlike BIONOLLE#3000, BIONOLLE#6000 and BIONOLLE#7000 do not increase lbe elongation at break significantly when 10 to 40% by weight of BIONOLLE#6000 or 

BIONOU E#7000 is blended with polylactic acid. This may 

be due to the fact that pure BIONOLLE#6000 and BIONOLLE#7000 do not possess the same tensile properties of 

BJONOLLE#3000, and also more importantly, the compatibility of poly lactic acid with BIONOLLE#6000 and BIONOLLE#7000 is not as good as that of polylactic acid and 

BIONOLI...E#3000. 1lowever, the compatibility of polylactic 

acid with BIONOLLE#6000 and BJONOLLE#7000 can be 

improved with the addition of a suitable compatibilizer, sucb 

as a small amount of BIONOLLE#3000. 

Example 2 

Aging Effect 

Tht: effect of aging on the blends was measured by 

physically aging the samples at room tcmperan1re and 

atmospheric pressure, and subsequently testing Lhe samples 

by tensile testing according to ASTM D 882 with lbe 

modifications already stated above. 

10 

addition, these BIONOLLE#3000 containing blends did not 

exhibit any significant reduction in elongation after aging. 

Example 3 

5 Biodegradation Testing in Soil 

Soil testing in an artificial soil environment was performed on 0.3 rom thick films of tbe blends using 1 be 

respirometric method developed at the NSF Biodegradable 

Polymer Research Center, University of Massachusells 

10 Lowell and designated UM L-7645. A standard soil mix 

(J :J :O.J polling soil:sand:dehydrated cow manure by 

weight) was prepared aod characterized. The soil test materials were exposed to tbc soil under controlled aerobic 

cond itioos at 30+:!:2° C. Carbon dioxide production, 

15 expressed as a fractioo of lbc measured of theoretical carbon 

content of lbe test materials, was measured as a function of 

time. The degree of biodegradation of lbe test material is 

assessed by comparing the arnmmt of C02 produced from 

the test material to that produced from a standard material, 

20 i.e., one thai is known to biodegrade (here PLA was used for 

comparison). 

Specifically, the soil biodegradation test was conducted as 

follows. Fifty grams (oveo-dry weight basis) of soil was 

weighed into a large (14 em) disposable weighing boat. 

25 Enough distilled water was added to the soil and mixed 

thoroughly to bring the soil to a moisture content of 60 to 

70%. Approximately 15 g o( the moist soil was set aside. 

The test specimen, or standard material, was added to the 

soil and the amended soil was mixed thoroughly. As shown 

30 in FIG. 10, the amended soil 16 was transferred to a large 

chamber 20 of a 250-mL biometer flask 22, packed to a 

uniform depth (about2.5 em), and covered by the 15 g oft be 

moist soil set aside. The large chamber 20 was tben closed 

with a rubber stopper 24 connected to a 3-mL plastic syringe 

35 26 packed with a material 26 that removes any carbon 

dioxide from air entering the biometer during incubation, 

such as sodium hydroxide-coated silicon (e.g., Ascarite'n'), 

between plugs of a filter material 28, e.g., glass wool or 

collon, that a.llows air, but not the AscariteTM, to pass. 

40 The combioed weigbt of the Aask, rubber stopper, and 

amended soil containing the test specimen was determined 

and recorded. Twcoty mL of 0.4M sodium hydroxide was 

pipc!led into Lbe side-arm chamber 30 <Jf the biometer flask 

22 and the side-arm chamber 30 was scaled with a rubber 

45 stopper 32. The biometer flask was placed io an environmental chamber at 30° C and this chamber was kept dark. 

The carbon dioxide analysis was done by reacting the 

carbon dioxide produced in the biometer with the sodium 

hydroxide in the side-arm chamber lo form an aqueous 

50 solution of sodium carbonate. The amount of carbon dioxide 

produced was mooitorcd by removing the sodium hydroxide 

from the trap and transferring it to a g lass test tube 10 which 

5 mL of 1.5M barium chloride was added. The barium 

chloride reacts with lbe sodium carbonate to form a precipi55 tate of barium carbonate. The amount of carbon dioxide 

evolved was calculated by standard stoichiometric calculation. 

FIG. 9 shows elongation at break of polylactic acid, 

BIONOU...E#3000, and their blends, as a function of aging. 

lbe elongation at break of poly lactic acid was below 8%, 60 

and decreased to about 5% with aging. Similarly, the elongation at break of A90Bl0 was rather low (about 50%) and 

decreased to lcs.s than 10% with aging. However, blends 

having a Bl0NOLLE#3000 contem of 20% or more by 

weight showed outstanding elongation at break (200% elon- 65 

gation fo r 20% BIONOLLE#3000, and similarly, 300% fo r 

30%, 400% for 50%, and 500% for 70%, respectively). In 

The net degradation was measured as the ratio of carbon 

dioxide evolved to the amount of tbeorctical maximum 

carbon dioxide production possible by the test specimen. 

The theoretical maximum carbon dioxide production was 

determined by the total organic carbon content of the test 

material (by calculation, if the chemical composition was 

well established, or elemental analysis). 'The maximum 

amount of carbon dioxide that can be theoretically evolved 

was calculated by the equation: 

Maximum carbo11 dioxide=[(IVxC)IlOO]xl44/12] 
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11 

where W is the weight of the test specimen; C is the percent 

organic carbon in the test specimen, 44 is the molecular 

weight of carbon dioxide, and 12 is the equivalent weight of 

carbon. 

The biodegradation testing in soil showed that the bio- s 

degradation rate of BIONOLL£#3000 by itself was 

extremely fast, while the biodegradation rate of polylactic 

acid by itself was relatively slow. 

The soil degradation testing results of the two polymers 

and their blends are reported in FIG. 11. After degradation 10 

for 45 days, BIONOLLE#3000 degraded almost 100%, 

while polylactic acid degraded only about 14% by loss in 

weight. For blends with 70 and 50% BIONOLLE#3000, the 

degrada tion rate was relatively fast. After 45 days, the 

/\30870,1\50850, and A70B30 blends degraded about 77%, 15 

65% and 25%, respectively, by loss in weight. FIG. ll shows 

that po lylact ic acid biodegrades in soil, but just not quickly, 

and the addition o f the second aliphatic polymer, such as 

BIONOLLE#3000, increases the biodegradation rate. 

111e importance of the soil biodegradation curves shown 20 

in FIG. 11 is that a specific blend can now be designed such 

that this blend would bave a certain net degradation in a 

given number of days within the soil. 

Example 4 

Biodegradation Testing in Compost 

13iodegradation testing in an artificial compost environment was conducted on film samples in a simulated munici25 

pal compost. Biodegradation testing in an artificial compost 

environment was conducted on compression molded film 

samples of dimensions 20 mmx20 mmx0.3 mm in a simu- 30 

lated municipal compost mixture consisting of 60% by 

weight of water and the rest containing shredded leaves, 

shredded paper, mixed fro-teo vegetables, meat waste, urea, 

and commercial compost seeds. The carbon to nitrogen 

(C:N) ratio of the starting mix was 14:1. The compostiog 

35 

process was carried out for 30 days at 55• C. Triplicate test 

samples wen: removed from the compostiog bioreactors at 

an interval of 5 days and weighed to measure the weight loss 

per surface area io the units of ltg/mm2 • 

After 20 days in the com posting environment at 55° C., 40 

BIONOLLE#3000 had a bigh weight los.s rate while polylactic acid had negligible weight loss. The weight loss rates 

in the blends of polylactic acid and BIONOLLE#3000 after 

20 days in the composting environment were between the 

rates of polylactic acid and BIONOLLE#3000. 45 

"l11e compost degradation testing results of the two polymers and their blends are reported in FIG. U . After degrada tion for 20 days, BIONOLLE#3000 degraded almost 

40%, while poly lactic acid degraded only about 3%, by loss 

in weight. For blends with 70 to 20% BIONOLLE#3000, the 50 

degradation percentage was much greater (and the rate much 

faster) than that of polylactic acid, e.g., after 20 days, the 

A30B70, A50B50, and A 70B30 blends degraded about 35%, 

25% and 15%, respectively, by loss in weight. FIG. 12 

shows that polylactic acid biodegrades in compost, but 55 

slowly, and the addition of even 20% by weight BIONOLL£#3000 increases this biodegradation rate dramatically. 

'llle importance of the compost biodegradation curves 

shown in FIG. 12 is that a specific blend can now be 

60 designed sucb that this blend would have a certain net 

degradation in a given number of days in a composting 

environment. 

Example 5 

Morphologv 65 

Samples were analyzed by microscopy to investigate the 

morphology of the pbascs of polylactic acid versus the 

12 

phases of DIONOLL£#3000. The blends were exposed to 

acetone to dissolve the polylactic acid component without 

affecting the 1310NOLLE#3000 component. For the blend 

containing 70% by weight of polylactic acid and 30% by 

weight of BIONOLLE/13000, 67% of the material, or 

approximately 95% of the polylactic acid, was dissolved. 

The remaining material was in a sheet form, and the BIONOLL£#3000 phase in the original blend formed a continuous 

or co-continuous phase, while the dissolved polylactic acid 

left behind holes in the s heet-like structure of BIONOLL£#3000. This continuous or co-continuous structure of 

the DIONOLLE#3000 phase in the orig inal blend explained 

the outstanding tougbnes.s shown in the graph of FIG. 6. 

OTIIER EMBODIMENTS 

II is to be understood tbal while tbe invemioo bas been 

described in conjunction with the d etailed description 

thereof, tha t the foregoing description is intended to illustrate and not limit the scope of the invention, which is 

defined by the scope of the appended c laims. Other aspects, 

advantages, and modifications are within the scope of the 

following claims. 

What is c laimed is: 

1. A biodegradable blend comprising: 

(a) a first polylactic acid-based polymer or copolymer, 

and 

(b) a second polymer consisting essentially of one or more 

polyesters, 

wherein said first and second polymers arc present in a 

ratio of 9: I to I :9 by weight, and wherein the second 

polymer is a homopolymer or random copolymer that 

forms a continuous or co-cooti.IJuous phase in the 

blend. 

2 . 'llle biodegradable blend of claim 1, wherein said one 

or more polyesters arc of one aliphatic Cz to Czo diacid or 

of a combination of two more different aliphatic Cz to Czo 

diacids. 

3. The biodegradable blend of claim 1, wherein said first, 

polylactic acid-based polymer is a homopolymer of polylactic acid. 

4. The biodegradable blend of claim l , wherein said first, 

polylactic acid-based polymer is selected from the group 

consisting of D-polylactic acid, L-polylactic acid, D,Lpolylactic acid, mcso-polylactic acid, and any combination 

of 0 -polylactic acid, L-polylactic acid, D,L-polylactic acid 

and mcso-polylactic acid. 

5. The biodegradable blend of claim 1, wherein said first, 

polylactic acid-based polymer is a copolymer having at least 

60% by weight of polylactic acid. 

6. The biodegradable blend of claim 1, wherein said 

second polymer or copolymer is selected from the group 

consisting of polybutylencsuccinate homopolymer, polybutyleneadipatc homopolymer, polybutyleoesuccinate-adipate 

copolymer, polycthylenesuccioate homopolymer, polyetbyleneadipate homopolymer and polyetbylenesuccinateadipate copolymer. 

7. The biodegradable blend of claim 1, wherein said 

polyester is an aliphatic polyester. 

8 . The biodegradable blend of claim 1, wherein said 

second polymer or <-'Opolymer is a copolyester of an aliphatic 

polyester and UJ> to 50 percent, by weight, of an aromatic 

polyester. 

9. The biodegradable blend of claim 8, wherein said 

aromatic polyester is polyethylene terepbthalate. 

10. A biodegradable blend of claim 1, further comprising 

(c) a compatibili7.er consisting essentially of one or more 

polyesters or polyvinyl alcohols. 
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5,883,199 

13 

ll. The biodegradable blend of claim 1, said blend having 

an elongation at break of at least 10%. 

12. The biodegradable blend of claim 1, sa id blend having 

an elongation at break of at least 200%. 

13. The biodegradable blend of claim 1, said blend having 5 

an elongation at break of at leastlO% after 70 days of aging. 

14. The biodegradable blend of claim 1, said blend having 

an elongation at break of at least 200% after 70 days of 

aging. 

15. T he biodegradable blend of claim 1, said blend having 10 a toughnes.s of at least 10 MJ/m3 . 

16. The biodegradable blend of claim 1, said blend having 

a toughness of at least 70 MJ/m3 . 

17. The biodegradable blend of claim 1, wherein said 

second polymer is present in said blend as a co-continuous 

pbase. 15 

14 

(b) a second polymer consisting essentially of one or more 

polyesters, 

wherein said first and second polymers are present in a 

ratio of 9:1 to l:O by weight, and wherein th second 

polymer is a homopolymer or random copolymer tha t 

forms a continuous or co-continuous phase in the 

blend. 

23. A bag comprising a biodegradable blend comprising; 

(a) a first polylactic acid-based polymer or co-polymer, 

and 

(b) a Second polymer consisting essentially of one or 

more polyesters. 

wherein said first and second polyooers are present in a 

ratio of 9:1 to 1:0 by weight, and wherein the second 

polymer is a homopolymer or random copolymer that 

forms a continuous or co-continuous phase in the 

blend. 

18. The biodegradable blend of claim 1, wherein said first, 

poly lactic acid-based polymer or copolymer is a bomopolymer of lactic acid or a block, graft, or random copolymer of 

lactic acid having the formula: 

-{R,).-{R:Jb24. A container comprising a biodegradable blend com20 prising: 

wherein R1 is a lactic acid unit, R:: is caprolactone, 

glycolide, trimethylene carbonate, dioxanone, butyryl 

lactone, or ethylene oxide, a i'> 10 to 10,000, and b is 0 to 

10,000. 

19. The biodegradable blend of claim l, wherein said 

polyester has the formula: 

-... [0- (CHl).,- 0 - C- (CHz).- C- lv-... 

II II 

0 0 

wherein m is 2 to 20, n is 2 to 20, and N is 10 to 10,000. 

25 

30 

20. The biodegradable blend of cla.im 1, wherein said first, 

polylactic acid-based polymer or copolymer is a polylactic 35 

acid homopolymer, and whe rein said second polymer or 

copolymer is a polybutylenesuccinate homopolymer. 

21. The biodegradable blend of claim 1, wherein said first, 

polylactic acid-based polymer or copolymer is a polylactic 

acid homopolymer, and whe rein said second polymer or 40 copolymer is a polybutylcnesuccinate-adipate copolymer. 

22. A fi lm comprising a biodegradable blend comprising: 

(a) a first polylactic acid-based polymer or copolymer, 

and 

(a) a first polylactic acid-based polymer or copolymer, 

and 

(b) a second polymer consisting essentially of one or more 

polyesters, 

wherein said first and second polymers are present in a 

ratio of 9:1 to 1.0 by weight and wherein the second 

polymer is a homopolymer or random copolymer that 

forms a continuous or co-continuotts phase in the 

blend. 

25. A disposable diaper comprising a biodegradable blend 

comprising: 

(a) a first polylactic acid-based polymer or copolymer, 

and 

(b) a second polymer consisting esseotia lly of one or more 

polyesters, 

wherein sa id first and second polymers are present in a 

ratio of 9:1 to 1:0 by weight, and wherein the second 

polymer is a homopolymer or random copolymer tha t 

forms a continuous or co-continuotts phase in the 

blend. 

* * * * * 
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UNJTED STATES PATENT AND TRADEMARK OFFICE 

CERTIFICATE OF CORRECTION 

PATENT NO. : 5,883,199 Page 1 of 1 

APPLICATION NO. :08/825810 

DATED :March 16, l999 

INVENTOR(S) : McCarthy et a!. 

It is certified that error appears in the above-identified patent and that said Letters Patent is 

hereby corrected as shown below: 

On the title page item (54), and col. 1, line 1,-replace "Polyactk" with-- Polylactic --

Signed and Sealed this 

Twentieth Day of February, 2007 

JON W. DUDAS 

Director oft he United States Patent and Trademark Office 
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UNITED STATES PATENT AND TRADEMARK OFFICE 

CERTIFICATE OF CORRECTION 

PATENT NO. 

APPLICATION NO. 

DATED 

INVENTOR(S) 

: 5,883,199 

: 08/825810 

: March 16, 1999 

: McCarthy et al. 

Page 1 of 1 

It is certified that error appears in the above-identified patent and that said Letters Patent is hereby corrected as shown below: 

Column 14, Claim 22, Line 4 

Delete " 1 :0" and Insert --1 :9--

Column 14, Claim 23, Line 15 (Approx) 

Delete " I :0" and Insert --1 :9--

Column 14, Claim 24, Line 27 (Approx) 

Delete " 1.0" and Insert--1:9--

Colunm 14, Claim 25, Line 39 

Delete "1 :0" and Insert --1 :9--

Signed and Sealed this 

Eighth Day of March, 2011 

f}w;J y_t_~ 

David J. Kappos 

Director oft he United States Patent and Trademark Office 
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51712014 Ma1abalixGrans a Pa1Bnt Ucensa1D Nab.JraWcrltl LLC for NewBiopoi)TIII' Blends 

Metabolix Grants a Patent License to 

NatureWorks LLC for New Biopolymer Blends 

Home > News > Metabolix-License 

E3 Metabolix o "ldll ~no I EvolutiO<'I 

03/14/2012 

CAMBRIDGE, Mass.--(BUSINESS WIRE)-- Metabolix, Inc. 

(NASDAQ: MBLX), a bioscience corJl)any focused on bringing 

environmentally sustainable solutions to the plastics, chenicals 

and energy industries, today announced that it has granted a 

non-exclusive license to NatureWorks LLC for the U.S. patent 

No. 5,883,199, titled "Polylactic Acid-based Blends," to make, 

use and sell blends of polylactic acid (PLA) with certain other 

polymers including polybutylene succinic polymers (PBS). The 

University of Massachusetts Lowell is the owner of the '199 patent, and Metabolix, Inc. is the 

exclusive licensee in the relevant field. NatureWorks and the biochenicals COrll>any BioAmber 

recently announced a joint venture which will support NatureWorks in bringing to market new 

perform:~nce Ingeo polymer compositions. 

"This research greatly expands the uses of PLA in biodegradable plastics because the blends 

allow for a stronger, more flexible form. The basis of my research is to irll'rove the potential uses 

for PLA because it is made from renewable natural resources rather than oil, and is 

environmentally friendly," said inventor and patent-holder Stephen Mccarthy, a professor of 

plastics engineering at UMass Lowell and director of the university's Bioplastics Research Center. 

The exclusive license agreement was negotiated on behalf of the university with Metabolix by 

UMass Lowell's Office of Commercial Ventures and Intellectual Property. 

"As a leader in the development of biobased polymer technology, we have assembled a broad 

intellectual property portfolio covering key elements of making and using advanced biomaterials, 

including biopolymer blends," commented Richard P. Eno, President and CEO of Meta bolix. "For 

areas outside of our technical and corTIT'ercial focus, we are amenable to licensing arrangements 

that provide Metabolix the opportunity for a financial participation and pave the way for the 

introduction of new materials to the marketplace." 

About NatureWorks LLC 

NatureWorks LLC is a company dedicated to meeting the world's needs today without 

compromising the earth's ability to meet the needs of tomorrow. NatureWorks LLC is the first 

company to offer a family of commercially available, low-carbon footprint Ingeo biopolymers 

derived from 100 percent annual renewable resources with performance and econonics that 

compete with oil-based plastics and fibers. In October 2011, Thailand's largest chenical 

producer, PTT Chenical Public Corll>any Limited, entered into an agreement to make a $150 

nillion equity investment in NatureWorks. The transaction remains subject to regulatory 

clearances. For more information on NatureWorks and Ingeo, visit www.natureworks.com 

About University of Massachusetts Lowell 

UMass Lowell is a CO"l'rehensive, national research university located on a high-energy campus 

in the heart of a global community. The campus offers its 15,000 students bachelor's, rraster's 

and doctoral degrees in education, engineering, fine arts, health and environment, humanities, 

liberal arts, rranagement, sciences and social sciences. UMass Lowell delivers high-quality 

educational programs, vigorous hands-on learning and personal attention from leading faculty and 

staff, all of which prepare graduates to be ready for work, for life and for all the world offers. 

1/2 
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51712014 

www.uml.edu. 

About Metabolix 

MetabolixGrants a Patent Ucenseto NabJreWorks Ll.C for NewBiopol}fTlel" Blends 

Founded in 1992, Metabolix, Inc. is an innovation-driven bioscience colll>any focused on 

providing sustainable solutions for the world's needs for plastics, chemicals and energy. The 

Colll>any is taking a systems approach, from gene to end product, integrating sophisticated 

biotechnology with advanced industrial practice. Metabolix is developing biobased industrial 

chemicals and plastics, as well as a proprietary platform technology for co-producing plastics, 

chemicals and energy, from crops. For more information, please visit www.metabolix.com. 

(MBLX-E) 

Metabolix: Safe Harbor for Forward-Looking Statements 

This press release contains forward-looking statements which are made pursuant to the safe 

harbor provisions of Section 27A of the Securities Act of 1933, as amended, and Section 21E of 

the Securities Exchange Act of 1934, as amended. The forward-looking statements in this 

release do not constitute guarantees of future performance. Investors are cautioned that 

statements in this press release which are not strictly historical statements, including, without 

limitation, statements regarding future licensing opportunities, constitute forward-looking 

statements. Such forward-looking statements are subject to a number of risks and uncertainties 

that could cause actual results to differ materially from those anticipated and are detailed in 

Metabolix's filings with the Securities and Exchange Comrrission, including its 10-K for the year 

ended December 31, 2011, which was filed on March 12, 2012. Metabolix assumes no obligation 

to update any forward-looking information contained in this press release or with respect to the 

announcements described herein. 

Nature Works 

Steve Davies, (952) 562-3343, Steve Davies@natureworksLLC.com 

UMass Lowell 

Christine Gillette, (978) 934-2209, Christine Gillette@urnl.edu 

Metabolix Media: 

Lynne H. Brum, (617) 682-4693, LBrum@metabolix.com 

or 

Schwartz MSL Boston 

Keith Giannini or Kirsten Swenson, (781) 684-0770, metabolix@schwartzmsl.com 

Investor Relations Inquiries: 

James R. Palczynski, ICR, (203) 682-8229, james.palczvnski@icrinc.com 

University Relations- Cumnock Hall, 31 University Ave., Lowell, MA 01854 

Phone: 978-934-3224 Fax: 978-934-3033 Contact Us 

http://WoYN.uml.edu/N 8Yt8/press-releases/2012JM atabol ixaspx 212 
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News

Featured Stories

In the News

Alumni Magazine

NewsLine

Photo Gallery

Today@UMass Lowell

Tell Us About It

Search News Archive

More Than $2.5 Million in Funded Research Conducted

06/30/2010

By Edwin L. Aguirre

UMass Lowell recently hosted a reception

for Metabolix/Telles to celebrate the

company’s 15 years of sponsored

research and licensing partnership with

the University. More than 30 students,

faculty, University administrators and

company officers attended the gathering,

which was held at the newly renovated

UMass Lowell Bellegarde Boathouse.

Attendees included Chancellor Marty

Meehan, Executive Vice Chancellor

Jacqueline Moloney, Administration and Finance Vice Chancellor Joanne

Yestramski, Provost Ahmed Abdelal and Engineering Dean John Ting as well

as Metabolix/Telles President and CEO Richard Eno, Chief Scientific Officer

Oliver Peoples, Telles General Manager Robert Engle and Strategy &

Commercial Development Vice President Johan van Walsem.

In his welcome remarks, Meehan thanked Metabolix/Telles for its support

through the years.

“Bioplastics and green technology are important to the future of the

University and the new Emerging Technologies and Innovation Center being

built on campus,” he said.

“We are very pleased with our partnership with UMass Lowell,” said Eno. “It

is one of the best universities in the country.”

Cambridge-based Metabolix is an innovation-driven bioscience company

focused on providing sustainable solutions for the world’s needs for plastics,

chemicals and energy. For example, the company is now developing and

commercializing MirelTM bioplastics, a renewable and biodegradable

alternative to petroleum-based plastic made from sugarcane.

“Research in bioplastics is vital to UMass Lowell,” said plastics engineering

Prof. Stephen McCarthy. “Metabolix located the headquarters of Telles in

Lowell because of its partnership with the University.”

McCarthy said Metabolix has funded more than $2.5 million in sponsored

research with UMass Lowell and more than 50 students for their master's and

doctorates. It has also donated more than a half million dollars’ worth of

bioplastic processing equipment.

“Metabolix has licensed UMass Lowell patents for bioplastic blends, with

potential royalties of $100,000 a year,” said McCarthy.

Chancellor Marty Meehan,

center, Prof. Stephen McCarthy,

second from right, and Executive

Vice Chancellor Jacqueline

Moloney, far right, with executives

from Metabolix/Telles.

UMass Lowell, Metabolix/Telles Celebrate

Partnership

Home > News > Metabolix_celebration

Home Directory Calendar Libraries Offices/Services Maps Plan an Event Jobs Email iSiS Blackboard

Prospective Students Current Students Faculty/Staff Alumni/Friends Community Media Support UML

ABOUT ACADEMICS RESEARCH ADMISSIONS & AID STUDENT LIFE ATHLETICS & RECREATION

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University Relations - Cumnock Hall, 31 University Ave., Lowell, MA 01854 

Phone: 978-934-3224 Fax: 978-934-3033 Contact Us

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From: Brian Igoe

To: jfrankle@ftc.gov

Cc: Kristi Guillemette; Steve Mojo

Subject: FW: Good Earth and ECM

Date: Thursday, June 26, 2008 4:55:47 PM

Attachments: goodearthproductclaims.pdf

ECM Exhibits July 17.pdf

Comments on ECM Documents Fnal.pdf

Dear Janice,

Please check out the claims this company is making about a microbial additive to traditional plastics, including PVC and

EPS which makes them biodegradable and harmless to the environment. http://www.goodearthpkg.com/ It is clear they

are making vague and intentionally deceptive claims about environmental benefits and ASTM certifications with no

corroborative data. This is a clear violation of the FTC guidelines for environmental marketing claims. Also, in the Good

Earth “Certification” section on their website they reference ASTM 5338, which is a test method (which yields a rate of

mineralization), and not a certification. 

I am attaching copies of Good Earth and ECM’s selling materials and some comments from the Bioplastic Products

Institute regarding the material. When you review the Good Earth PPT presentation (on their website), and ECM’s material

you’ll see these products use ECM’s additive technology. Most of the photos in the powerpoint document on the Good

Earth website (and signatures) match that of the ECM info attached.

I hope this helps in your pursuit of false claims by these companies.

Sincerely,

Brian Igoe

Brian Igoe

VP and Chief Brand Officer

978-513-1850

CONFIDENTIALITY NOTICE:

This message is intended for the use of the individual or entity to which it is addressed and may contain

information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this

message is not the intended recipient or the employee or agent responsible for delivering this message to the

intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is

strictly prohibited. If you have received this communication in error, please notify us immediately by email reply or

by telephone and immediately delete this message and any attachments.

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5.1712014 MGITbir II'Oftle 

To print th .. page properl, • 11M Print lc:on located on the page. 

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Find C.rtlflld COtTc>oltMie 

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C0J1110Si:lbll Products 

All About COmJ)Oiting 

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BPI News comer 

About BPI 

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UHfuiUnb 

L__ _____ ____J I s..d•l 

ABOUT I BLOG I UNI<S 

Back 

MireiD'I Bioplastics by Metabolix I send meeaaa•l 

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Orgamzatic Mirei1M Bioplastics by Metabolix 

First nan Dave 

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e-M, scariBHCmetabolx:.com 

Pho1 978-513-1870 

Product Imat ~ !!!i~!J 

Contact dahl 

Affillatlc Materials SUpplier 

Directory llstlr Manufactures and sells a broad family of MlreP"' 

te bloplastlc Including Injection molding materials 

P1003, PS001, FlOOS, P1004/F1006, and M.ven~tM 

B5002 film. 

Pe.-.onallnformatiiDn 

Addrel 650 Suffolk Street; Suite 100 

Cl Lowell 

AddiiiDnallnformatiiDn 

Provlnce/Sta MA 

Postal coc 01854-3639 

Count USA 

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Certlflc Resins 

Blodegradab 

Products 

Compostable Compostable Resins 

Products 

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51712014 Meniler profile 

Copyright (C) 2003·2012 

Blod•gr•d•bl• Product. ln•tltute, Inc. 

888c 8th Ave #141 

New York, NY 10019 

1-888-BPl-LOGO (274-5646) [North America] -International +1-646-845-0776 

C:.:k hent to Cantllct the Ill' I 

Online m•rketlng lltnterw by SPS Group, Inc. 

http://WoYN.bpi'Mll'ld.org/Content/MerrbersJMen11erPublicProlile.aspJ{?pegeld=372399&rnerrberld=890994 
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QWp•//ypp ,.bn!Js,tptp\ 

Company 

Descrtptron: 

Melllbolb: 

2.1 Erk: St 

Cambs:idge, M.A 02139 

P:978-513-1800 

F:978-513-1886 

4080 Products llnld as of 

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51712014 

Metabolix 

Metabolix 

Metabolix 

Metabolix 

Metabolix 

Metabolix 

Metabolix 

Metabolixl BPI Product Catalog 

M2100, M2200 and M4100 Resins 

Natunl colored resin with a maximum thickness 0.69 mm . 

Uncolored resins, sold under the t:radename Mirel®, for max. approved thickness of 

0.69mm [P4Q04] 

Injection Molding Grades P1003/P1004 (max. thickness 0.48mm) 

Injection Molding Grades F1005/F1006 

MOOOO and M4300 resins, approved up to 0.69 mm 

Uncolored resins for the production of blown and cast films with a max. thickness of 197 

!-LID 

BPI i& a tndemark of the Biodegradable Products Institute 

Copyright (q 2003-2012 

Biodegradable Producta Inatitute, Inc. 

331 West 57th Street, Suite 415, 

New York, NY 10019 

1-888-BPI-LOGO (274-5646) 

Click here to Contact the BPI Cbtt;p://www.\uriwodd.ore:/BPI-Public/Contact.html) 

(htt;p;//www.bpiworld.otii'/BPI-Public/Cootact.html) Online marhtina ouateay by 5PS Gtoyg. Inc. (http://www.tPq:c.com) 

http://prcx1Jcls.bpiv.orld.org/C<Xlll811ieslmetabolix 
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BPI Biodegradable 

Products~ 

Institute \\IJ 

promoting biodegradable products throughout the world 

April 25, 2005 

Ms. Janice Frankie 

Federal Trade Commission 

601 New Jersey Ave NW 

Rm 2122 

Washington D.C., 20001 

Dear Janice: 

It was good to speak with you again. As we discussed, I would like to bring to the FrC's 

attention that there are a growing number of "biodegradable" claims, especially by 

manufacturers of plastic bags for collecting pet waste. These manufacturer's actions are 

misleading, inappropriate (and in some cases knowingly illegal). 

The BPI is designed to be a multi-stakeholder group, involving people and companies that 

produce, use or recover biodegradable products. Our goal is to include organizations and 

individuals ranging from resin suppliers and converters to industry suppliers to waste 

haulers and composters as well as government officials, scientists and leading academics. 

The organization has shown steady growth over the past few years. Current members 

include leading biodegradable resin suppliers, such as BASF1 NatureWorks LLC, DuPont, 

Novamont and Procter & Gamble, converters and distributors, such as Heritage Bag, 

Polargruppen A/S, Farnell Packaging, Georgia Pacific and Biota Spring Water, along with the 

United States Com posting Council, The Massachusetts Department of Environmental 

Protection, and R. Narayan, Chairman of ASTM 020.96-Subcommittee on Degradable 

Plastics. 

The issues that the BPI believes need to be addressed are 

• Claiming to "biodegradable"/ even when the bags (and pet waste) are customarily 

landfilled. 

• Failure to support "biodegrades in landfill" claims with scientific data. 

• Knowingly breaking the Jaws in the State of California. 

The 2 products that are emblematic of these offenses are "Oops I Pooped" and \'Bags,on 

Board". These products are sold throughout the United States via large retailers, lil~e 

Petsmart and REI, as well as smaller outlets. 

The BPI supports the FTC's Guides for the Use of Environmental Marketing Claims. ~ 

Moreover, the BPI objects to the use of "biodegradable" without any qualifications as to 

where this occurs; how long it takes and not having the data to support this claim. 

FTC _Prod_ 064468 
Resp. Mot. for Leave 

Exh. RX-K

PUBLIC DOCUMENT

"An unqualified claim that a product or package is degradable, biodegradable or 

photodegradable should be substantiated by competent and reliable scientific evidence 

that the entire product or package will completely break down and return to nature, f&u 

decompose into elements found in nature within a reasonably short period of time after 

customary disposal. " Section 206. 7 b of the FTC Guides for the Use of Environmental 

Marketing Claims. 

Additionally, there are few, if any, benefits derived from putting "biodegradable" materials 

in a landfill, which are designed to be arid tombs according to RCRA. For this reason, the 

BPI believes that a claim of "biodegrades in landfills'' is an exaggeration of an environmental 

benefit. 

"Overstatement of environmental attribute: An environmental marketing claim should not 

be presented in a manner that overstates the environmental attribute or benefit, expressly 

or by implication. Marketers should avoid implications of significant environmental 

benefits if the benefit is in fact negligible." Section 206.6 c of the FTC Guides for the Use 

of Environmental Marketing Claims 

In fact, in some countries, including Britain, Germany and Canada, regulations are being 

enacted to keep biodegradable materials out of the landfill as a way of reducing methane 

gas generation (a significant contributor global warming). 

The BPI believes that the claims made by \'Oops I Pooped" are misleading (see attached 

page from their website (Exhibit 1) because they are not supported by scientific data. 

Further, biodegradation in landfills provides no meaningful environmental benefit and thus 

this is an overstatement of an environmental benefit. 

• "biodegradable waste bags for .. your dog" 

• "will completely degrade in a landfill and leaves behind no harmful residue" 

• Under benefits, "Steady degradation rate, typically 2 years." 

• "1 to 5 years pending landfill conditions" 

• ''Our bags will biodegrade in landfills in every State but California" 

When asked by the BPI, "Oops I Pooped" provided the attached data (Exhibit 2), which 

discusses the test results of polyethylene resins with an additive produced by ECM. The 

document was reviewed by Dr. Ramani Narayan a noted expert in the field of plastics and 

biodegradation. Dr Narayan's findings can be summarized as follows (see Exhibit 3 for 

complete comments): 

• Only 24% of the material was mineralized (or biodegraded). According to the 

test results, seventy six percent of the material remains. 

• The biodegradation process plateaued prior to the end of the test, indicating that 

the process had stopped. (There is no indication that it will continue). 

• These levels are comparable to those achieved by the first round of 

"biodegradable plastics" 20 years ago, which generated the initial FTC lawsuits in 

this area. 

Clearly, there is no support for complete biodegradation in a landfill, even in 5 years, as 

stated by the supplier and shown on a retailer website (See Exhibit 4). Also, attached is 

a partial listing of retailers carrying this product~ according to the manufacturer's website 

(Exhibit 5) 

FTC_Prod_064469 
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PUBLIC DOCUMENT

Additionally, the last claim, "Our bag will biodegrade in landfills in every state except 

California", shows that the manufacturer knows that it is not complying with applicable 

state laws. As background, the State of California regulations state that any claims of 

"biodegradable, compostable or degradable" by plastic films must comply with a current 

ASTM Specification (Exhibit 6). California enacted this law in order to stop the 

misleading claims made by plastic bag manufacturers, which were on the increase. The 

·California law does not create an exemption for products that a customarily landfilled. 

Moreover, there are no ASTM Specifications for landfill biodegradation. 

In the case of "Bags On Board", the BPI objects to their "100% Biodegradable Bags, 

except as defined by California" claim for 3 reasons (Exhibits 7 & 8): 

• The attached independent analysis shows that the bags are essentially 

polyethylene with no additives to promote degradation (Exhibit 9). 

• Promoting biodegradation of a product that is landfilled Is inappropriate and an 

overstatement of an environmental benefit. 

• The packaging clearly shows that the producer is not in compliance with the laws 

of California. 

The plastics industry is working hard to develop tests and criteria for determining 

acceptable biodegradation performance in appropriate disposal routes. ASTM 06400 for 

Compostable Plastics and ASTM 06868 for Compostable Packaging are good examples. 

Claims such as those used by "Oops I Pooped" and \'Bags on Board" harm the credibility 

of all manufacturers that seek to comply with the FTC Environmental Marketing Guides. 

More importantly, their statements mislead consumers by claiming to have 

environmental benefits when in fact they do not. 

Janice, this note requests that the FTC order these 2 companies to cease their 

misleading advertising. Further, the BPI hopes that FTC would recognize and support 

California,s effort to use ASTM Specifications as the basis for making biodegradable, . 

compostable and degradable claims. Finally, the FTC should reiterate that claims of l f:::.-

biodegradabillty for products customarily disposed in landfills is an overstatement of an _I 

environmental benefit. -

Sincerely, 

SL__i\ y . Steven 

BPI Executive 

A. Mojo 

Director 

~ 

Attachments 

FTC_Prod_064470 
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List of Exhibits 

#1: Oops I Pooped claims from their website. You will find 

• "Will completely biodegrade in landfill and leave behind no harmful 

residue" 

• "Steady degradation rate typically 2 years" 

• "1 to 5 years pending landfill conditions'' 

• "Our bags will biodegrade in landfills in every State but California!" 

#2: Document supplied by Oops I Pooped, providing their substantiation 

• "Ecological Assessment of ECM Plastic" 

#3 Analysis and comment of Exhibit #2 by Dr. R. Narayan. 

#4: Samples from REI's (retailer) website promoting biodegradation In 

landfills 

#5 Partial list of retailers from Oops I Pooped website 

#6 Text of California Labeling Legislation 

#7 Sample of "Bags on Board" product purchased at retail, claiming 100°/o 

Biodegradable Bagsr except as defined in California" 

#8 Materials from retailer website, claiming "100% Biodegradable" 

#9 Analysis by Polimeri Europa/ showing that the bags are polyethylene 

FTC_Prod_064471 
RESPONDENT 

EXHIBIT 

RX-L 

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SUBPOENA DUCES TECUM 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 16 C.F.R. 

D&W Fine Pack, LLC 

David H. Randall, CEO and President 

1372 North Old Laurens Road P.O. Box 766 

Fountain Inn, SC 29644 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated books, documents 

Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 4. MATERIAL WILL BE PRODUCED TO 

Elisa Jillson 

Federal Trade Commission 

600 Pennsylvania Ave, NW, Mailstop M-81 028 

Washington, DC 20580 

6. SUBJECT OF PROCEEDING 

In the Matter of ECM Biofilms, Inc., Docket No. 9358 

7. MATERIAL TO BE PRODUCED 

5. DATE AND TIME OF PRODUCTION 

See documents and materials identified on the attached Schedule and Exhibits, including the Protective Order 

Governing Discovery Material. 

8. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Complaint Counsel 

Katherine Johnson (202) 326-2185 

Jonathan Cohen (202) 326-2551 

Elisa Jillson (202) 326-3001 

DATE SIGNED SIGNATURE OF COUNSEL ISSUING SUBPOENA 

APPEARANCE 

The delivery of this subpoena to you by any method 

prescribed by the Commission's Rules of Practice is 

legal service and may subject you to a penalty 

imposed by Jaw for failure to comply. 

MOTION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any 

motion to limit or quash this subpoena must comply with 

Commission .Rule 3.34(c), 16 C.F.R. § 3.34(c), and in 

particular must be filed within the earlier of 10 days after 

service or the time for compliance. The original and ten 

copies of the petition must be filed before the 

Administrative Law Judge and with the Secretary of the 

Commission, accompanied by an affidavit of service of 

the document upon counsel listed in Item 9, and upon all 

other parties prescribed by the Rules of Practice. 

FTC Form 70·E (rev. 1/97) 

TRAVEL EXPENSES 

The Commission's Rules of Practice require that fees and 

mileage be paid by the party that requested your appearance. 

You should present your claim to counsel listed in Item 9 for 

payment. If you are permanently or temporarily living 

somewhere other than the address on this subpoena and it 

would require excessive travel for you to appear, you must get 

prior approval from counsel listed in Item 9. 

A copy of the Commission's Rules of Practice is available 

online at http://bit.ly/F.TCRulesofPractic<l.. Paper copies are 

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 
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RETURN OF SERVICE 

I hereby certify that a duplicate original of the within 

subpoena was duly setved: {check the method used) 

('_ in person. 

(i' by registered mail. By Federal Express overnight mail, pursuant to Rule 4.4(a)(2) of the 

Federal Trade Commission's Rules of Practice. 

r- by leaving copy at principal office or place of business, to wit: 

--·············--

on the person named herein on: 

F.ebrt!ttry-5", 2 0 14 \:f. 

(Month, day, and year) 

Elisa Jillson 

(Name of person making service) 

Attorney, Federal Trade Commission ------- -------· 

(Official title) 
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United States of America 

FEDERAL TRADE COMMISSION 

Katherine Johnson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2185; kjohnson3@ftc.gov 

Jonathan Cohen 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2551; jcohen2@ftc.gov 

Elisa Jillson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-3001; ejillson@ftc.gov 

March 17,2014 

VIA FEDERAL EXPRESS 

D&W Fine Pack, LLC 

David H. Randall, CEO and President 

1372 North Old Laurens Road P.O. Box 766 

Fountain Inn, SC 29644 

Re: In the MaUer of ECM BioFilms, Inc, Dkt. No. 9358 

Subpoena Duces Tecum 

Dear Mr. Randall: 

The Federal Trade Connnission ("FTC") has initiated an adjudicative proceeding against 

ECM BioFilms, Inc., Docket No. 9358. This letter is to notifY you that Complaint Counsel has 

issued a subpoena duces tecum for production or inspection of certain of your documents and 

tangible things. See Commission Rule of Practice, 16 C.P.R.§ 3.34(b). Enclosed please find the 

subpoena with attached schedule (which describes the scope of the subpoena) and exhibits A 

through C. 

• Exhibit A- On October 22, 2013, the Federal Trade Commission's Office of the 

Administrative Law Judges issued a Protective Order Governing Discovery Material, 

which protects confidential materials from discovery in the case. 

• Exhibit B- Please execute this Certification of Records of Regularly Conducted Activity 

and provide it with your response. 

• Exhibit C- The FTC's Bureau of Consumer Protection Production Guide provides more 

information on your subpoena response format. 
Resp. Mot. for Leave 

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United States of America 

FEDERAL TRADE COMMISSION 

Katherine Johnson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2185; kjohnson3@ftc.gov 

Jonathan Cohen 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2551; jcohen2@ftc.gov 

Elisa Jillson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-3001; ejillson@ftc.gov 

Any documents you produce to the Commission that are confidential must include the 

notice "CONFIDENTIAL- FTC Docket No. 9358" in accordance with the Protective Order. If 

you produce confidentiai documents in electronic or other media, you may place the 

"CONFIDENTIAL- FTC Docket No. 9358" designation on the CD. 

Please call at your earliest convenience to discuss any issues regarding production. You 

may reach me at (202) 326-3001. 

Enclosures 

Sioo~ 

Elisa Jillson 

Complaint Counsel 
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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC 

COMPLAINT COUNSEL'S SCHEDULE FOR PRODUCTION OF DOCUMENTS 

PURSUANT TO SUBPOENA 

Pursuant to Complaint Counsel's attached Subpoena Duces Tecum issued January 29, 

2014, under Commission Rule of Practice§ 3.34(b), Complaint Counsel requests that the 

following materials be produced to the Federal Trade Commission, 600 Pennsylvania Ave, NW, 

Mailstop M-8102B, Washington, DC 20580. 

DEFINITIONS 

A. "And," as well as "or," shall be construed both conjunctively and disjunctively, as 

necessary, in order to bring within the scope of any Specification all information that 

otherwise might be construed to be outside the scope of the specification. 

B. "Any" shall be construed to include "all," and "all" shall be construed to include the 

word "any." 

C. "Communication" includes, but is not limited to, any transmittal, exchange, transfer, or 

dissemination of information, regardless of the means by which it was accomplished, and 

includes all communications, whether written or oral, and all discussions, meetings, 

telephone communications, or email contacts. 

D. "Document" shall mean the complete original and any non-identical copy (whether 

different from the original because of notations on the copy or otherwise), regardless of 

origin or location, of any written, typed, printed, transcribed, filmed, punched, or graphic 

matter of every type and description, however and by whomever prepared, produced, 

disseminated or made, including but not limited to any advertisement, book, pamphlet, 

periodical, contract, correspondence, file, invoice, memorandum, note, telegram, report, 

record, handwritten note, working paper, routing slip, chart, graph, paper, index, map, 

tabulation, manual, guide, outline, script, abstract, history, calendar, diary, agenda, 

minute, code book or label. "Document" shall also include Electronically Stored 

Information. 

E. "ECM" shall mean ECM Biofilms, Inc., including without limitation, its agents, 

employees, officers, or anyone else acting on its behalf. 
Resp. Mot. for Leave 

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F. "ECM Additive" means any plastic additive directly or indirectly sold or distributed by 

ECM Biofilms, Inc. 

G. "ECM Certificate" means any certificate provided to you by ECM that represents that 

any plastic or product containing the ECM Additive is biodegradable. 

H. "ECM Logo" means any logo provided to you by ECM that references biodegradability. 

I. "ECM Plastic" means any product that contains the ECM Additive. 

J. "Electronically Stored Information" or "ESI" shall mean the complete original and any 

non-identical copy (whether different from the original because of notations, different 

metadata, or otherwise), regardless of origin or location, of any information created, 

manipulated, communicated, stored, or utilized in digital form, requiring the use of 

computer hardware or software. This includes, but is not limited to, text messages, 

electronic mail, instant messaging, videoconferencing, and other electronic 

correspondence (whether active, archived, or in a deleted items folder), word processing 

files, spreadsheets, databases, and video and sound recordings, whether stored on: cards; 

magnetic or electronic tapes; disks; computer hard drives, network shares or servers, or 

other drives; cloud-based platforms; cell phones, PDAs, computer tablets, or other mobile 

devices; or other storage media. "ESI" also includes such technical assistance or 

instructions as will enable conversion of such ESI into a reasonably usable form. 

K. "Include" and "including" mean "without limitation," or "including but not limited to," 

so as to avoid excluding any documents or information that might otherwise be construed 

to be within the scope of any specification. 

L. "Referring to," "relating to," or "related to" shall mean discussing, describing, 

reflecting, containing, analyzing, studying, reporting, commenting, evidencing, 

constituting, setting forth, considering, recommending, concerning, or pertaining to, in 

whole or in part. 

M. "You" and "Your" means D&W Fine Pack, LLC. 

INSTRUCTIONS 

A. Applicable time period: Unless otherwise directed in the specifications, the applicable 

time period for the request shall be from January 1, 2008, until the date of full and 

complete compliance with this subpoena. 

B. Petitions to Limit or Quash: Pursuant to Commission Rule of Practice 3.34(c), any 

motion to limit or quash this subpoena must be filed within ten days of service hereof. 

C. Protective Order: On October 22, 2013, the Court entered an order governing discovery 

material in this matter. A copy of the Protective Order is attached hereto as Exhibit A 

with instructions on the handling of confidential information. 

D. Sensitive Personally Identifiable Information: If any material called for by these 

Specifications contains sensitive personally identifiable information or sensitive health 

information of any individual, please contact us before sending those materials to discuss 

ways to protect such information during production or whether it would be appropriate to 

redact the sensitive information. 
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PUBLIC DOCUMENT

For purposes of these requests, sensitive personally identifiable information includes: an 

individual's Social Security number alone; or an individual's name or address or phone 

number in combination with one or more of the following: date of birth, Social Security 

number, driver's license number or other state identification number, or a foreign country 

equivalent, passport number, financial account number, credit card number, or debit card 

number. Sensitive health information includes medical records and other individually 

identifiable health information relating to the past, present, or future physical or mental 

health or conditions of an individual, the provision of health care to an individual, or the 

past, present, or future payment for the provision of health care to an individual. 

E. Scope of Search: This subpoena covers documents and information in your possession 

or under your actual or constructive custody or control including, but not limited to, 

documents and information in the possession, custody, or control of your attorneys, 

accountants, directors, officers, partners, employees, and other agents and consultants, 

whether or not such documents and information were received from or disseminated to 

any person or entity. 

F. Document Production: You shall produce the documentary material to Elisa Jillson, 

Federal Trade Commission, 600 Pennsylvania Ave., NW, M -81 02B, Washington, DC 

20580. Because postal delivery to the Commission is subject to delay due to heightened 

security precautions, please use a courier service such as Federal Express or UPS. Please 

see the attached Bureau of Consumer Protection Production Guide (Exhibit C) for 

detailed instructions for submitting ESI or digitally imaged hard copies. Please mark the 

exterior of all packages containing electronic media sent through the U.S. Postal Service 

or other delivery services as follows: 

MAGNETIC MEDIA- DO NOT X-RAY 

MAY BE OPENED FOR POSTAL INSPECTION . 

. G. Documents that may be responsive to more than one specification of this subpoena need 

not be submitted more than once; however, your response should indicate, for each 

document submitted, each specification to which the document is responsive. If any 

documents responsive to this subpoena have been previously supplied to the 

Commission, you may comply with this subpoena by identifying the document(s) 

previously provided and the date of submission. Documents should be produced in the 

order in which they appear in your files or as electronically stored and without being 

manipulated or otherwise rearranged; if documents are removed from their original 

folders, binders, covers, containers, or electronic source in order to be produced, then the 

documents shall be identified in a manner so as to clearly specify the folder, binder, 

cover, container, or electronic media or file paths from which such documents came. In 

addition, number by page (or file, for those documents produced in native electronic 

format) all documents in your submission, preferably with a unique Bates identifier, and 

indicate the total number of documents in your submission. 

H. Production of Copies: Unless otherwise stated, legible photocopies (or electronically 

rendered images or digital copies of native electronic files) may be submitted in lieu of 

original documents, provided that the originals are retained in their state at the time of 

receipt of this subpoena. Further, copies of originals may be submitted in lieu of 

originals only if they are true, correct, and complete copies of the original documents; 

provided, however, that submission of a copy shall constitute a waiver of any claim as to 

the authenticity of the copy should it be necessary to introduce such copy into evidence in 

any Commission proceeding or court of law; and provided further that you shall retain the 
Resp. Mot. for Leave 

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PUBLIC DOCUMENT

original documents and produce them to Commission staff upon request. 

I. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the request. The document shall not be edited, cut, or 

expunged in any way and shall include all covering letters and memoranda, transmittal 

slips, appendices, tables or other attachments. 

J. Each request includes any and all copies of the responsive document and, to the extent 

applicable, preliminary drafts or documents that differ in any respect from the original or 

final draft or from each other (e.g., by reason of differences in form or content or by 

reason of handwritten notes or comments having been added to one copy of a document 

but not the original or other copies thereof). 

K. In the event that any document covered by this subpoena was in your possession or actual 

or constructive custody or control and has been lost or destroyed, the document is to be 

identified in writing as follows: addressee, person who prepared or authored the 

document, date of preparation or transmittal, substance of the document and its subject 

matter, number of pages, attachments, or appendices, all persons to whom distributed, 

shown or explained, date of loss or destruction, and, if destroyed, the manner of 

destruction, the reason for destruction, the persons authorizing destruction, and the 

persons who destroyed the document. 

L. If an objection is made to any request herein, all documents covered by the request not 

subject to the objection should be produced. Similarly, if an objection is made to 

production of a document, the portion of that document not subject to objection should be ·· 

produced with the portion objected to redacted and clearly indicated as redacted. 

M. All objections to these requests or to any individual request must be raised in the initial 

response or are otherwise waived. 

Cfaims of Privilege: Pursuant to Federal Trade Commission Rnles of Practice 3.38A, 16 

C.P.R. § 3.38A, if any documents are withheld from production on a claim of privilege or 

any similar claims, you shall provide , not later than the date set for production of 

materials, a schedule that describes the nature of the documents, communications, or 

tangible things not produced or disclosed with sufficient detail to enable Complaint· 

Counsel to assess the claim of privilege. The schedule shall state individually for each 

item withheld: 

I. The custodian of the document; 

2. The type of document, including any attachments (e.g., letter, memorandum); 

3. The date of the document; 

4. The general subject matter of the document; 

5. The sender, author, and all recipients of the document; and 

6. The basis on which you contend you are entitled to withhold the document from 

production. 

If only a part of a responsive document is privileged, all non-privileged parts must be 

submitted. 

N. Certification of Records of Regularly Conducted Activity: Attached as ExhibitB is a 

Certification of Records of Regularly Conducted Activity, which may reduce the need to 

subpoena you to testifY at future proceedings in order to establish admissibility of the 

documents produced in response to this subpoena. You are asked to execute this 

certification and provide it with your response. 
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SPECIFICATIONS 

(1) Provide samples of all ECM Plastic that you sold or distributed that displays (a) an ECM 

Logo; or (b) any other claim or representation regarding biodegradability. Alternatively, 

make such materials available for inspection. 

(2) Provide samples of all packaging ofECM Plastic that displays (a) an ECM Logo; or (b) 

any other claim or representation regarding biodegradability. Alternatively, make such 

materials available for inspection. 

(3) Provide all Documents (including, without limitation, website images) that display, 

include or reflect an ECM Logo or ECM Certificate, other than Documents provided to 

youbyECM. 

( 4) Provide copies of the ECM Certificate that you provided to any person or entity, along 

with any associated Communications. 

(5) Provide all Documents related to any testing, assessment, or evaluation of the ECM 

Additive or ECM Plastic, other than Documents provided to you by ECM. 

( 6) Other than communications solely between you and ECM, provide all Documents related 

to: (a) the ECM Additive or ECM Plastic; (b) the alleged biodegradability ofECM 

Plastic; and (c) claims, representations or other marketing concerning the 

biodegradability ofECM Plastic (including, without limitation, claims, representations, 

or other marketing concerning the rate and extent of biodegradation, and the timeframe or 

period for biodegradation). 

Kath7rilleJO ~kj0hllson3@ftc.gov) Jonathan Cohen Qcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

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

Fax: 202-326-2551 
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CERTIFICATE OF SERVICE 

I hereby certify that on March 17,2014, I caused a tme and conect copy of the foregoing 

document to be served by email to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: iemord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Dated: March 17,2014 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Katherine Johnson cjo son3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

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

Fax: 202-326-2551 
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Exhibit A 
Resp. Mot. for Leave 

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UNITED STATES OF AMEIUCA 

FElJERAL TMDE COMMISSION 

OFFJCJ!. OF ADMlNI$TRATlYE LAW JUDGES 

In the Matter of 

ECM BioF'ilrns, Inc., 

a corporation, also d/b/a 

Enviropla.stics International, 

Responcl.ent. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Cornrniasitm.Rule 3.31(d) states.: "In order to protect the patties and third patties 

against hnproper use and disclosure of (l()n£i.dential ir~fotmation, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 1<5C.F.R. 

§ 3.31( d). Pursuanito Commission Rule 3 .31( d), the protective ordst set forth in the. 

appendix to that section is attached verbatim as Attaclunent A and is het.;,by issued. 

ORDERED: . "p fh ,JLJJCJ.eJL D. Michael C~~u-==---

Chle.f Administrative Law Judge 

Date: Octob<:>r 22,2013 
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ATTACHMENT A 

For the purpose ofpl.'Otecting the interests ofthe parties and third parties in th" 

above-captioned matter against improper use and disclosure ofoonfidet1tial info1mation 

submitted or prodttoed in connection with this matt6r: 

IT IS HEREBY ORDERED THAT this Protective Order Govel'ning 

Confidential Material ~·Protective Order") shall govem the handling of all Discovery 

Material, ru; her~ de'fillecl, 

1. A~ used in this Order, "confidential matel'ial" shall.refer to any document o.r portion 

thereof that contains pdvileged,. comp~tlJ;ively sensitive info<ll1ation, or sensitive personal 

infoi'mati011.. "Sensitive personal mformatiM" shall refer to, but shall not be limited to, 

an il1dividual 's S¢cial Security 'tlU!X\ber, taxpayer identificai'ion number, financial account 

mnnber, credit oard or debit card number, ddver'slicense numbel', stato-issued 

identificatioi:tn!Uli.berl passport number, date .of birth (other than year), and any sensitive 

health: information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, reoOI'ding, ttanscdpt of oral 

testimony, ot electronically stored information in the possession of a party or a thitd 

pl\liy. "Cormnislllo'n" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting onits behalf, e)wlwJing parsons 

retained as oonsulte.tlts or experts for purposes of this proceeding. 

2. Any document ot porti.on thereof submitted by a respoudent or a third party during a 

Federal Trade Cnmmisslon investiga:tion or du:tingthe com-se ofthis proceeding that is 

entitled to con!ldentlalhy !lllder the Federal Trade COl'lirtiission Act, or any regulation, 

int. 111:pretation, or preeed ent conce.rning do em. nl:'nts in the possession of the Commission, 

aB well as JtnY itli'Ol'bl:ilt!on taken from anypottioo of such document, shall be tr0ated as 

confidential material for purposes of this OtdeL T.he identity o~ a thitdpa:rtysubmitling 

such confidential material shall also be treated as confldentlal material :fur the ptuposes of 

this Order where th~ submitter has reql!<Jsted such confidential tre~tment. 

3. The parties and any third pm'ei~s, in complying with informal disooveryteque;is, 

disclosm·e requirements, or aiscovery demands itt this PI'Oceedmg.may designate any 

respo.nsive Mcument or portion thereof as confidential material, mduding documents 

obtained by them from third parties pursuant to discovery ot' as otherwise obtained. 

4. The parties, in conducting discovery from third. parties, shall provide to each third 

p!ll'ty 1Lcopy ofthls Ordet' so as to l.nform each such tl1ird party ofhls, h¢:r, or its rights 

herein. 

5. A dwignation q£<;\on:tidentiallty shall constitute.a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and tf1at cotmsel believes the material so designated ~onstitutes 

confidential material as d~fined in Pe'ragraph I oft.his Order. 
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6. Materlal)J;\ay be d(}signated as confldential by placing on or affudng to the docw.nent 

containing .such material (ill such mru<ner as will not interfere with the legibility thereof), 

Ol' if an entite folder or box of documents is confi(lential by plMing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any o1l1er 

appl'opriate noti.ce that identifies this proceeding, together with an indication ofthe 

portion or portions ofthe dooumffnt considered to be confidential material, CDnfidentlal 

informatiOJl contained hi electronic documents may also be designated as confidential by 

pla,cing the designation '"CONFIDENTIAL- FTC Docket No. 935&" 01' any othc1· 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

.ttteditun: on which the document is pioduced. Masked or otherwise redacted copies of 

domunents may be prodt1oed where the portionll deleted contain privileged mattet\ 

provided that the copy proclt~ced shall indicate at the appropriate point that portions have 

been deleted mtd the reasons thl!refor. 

7. Confid~ntialmaterial shall be disclosed only to: (a) the Ad:minist:ratlve Law Judge 

presiding over this proceeding, personnel assisting the Admtnistratlve Law Judge, the 

Commi~slpn and its employees, and pe!·sorlli.el r.etained by th¢ Commission as experts or 

consultants for this proceedlng; (b) judges and other court penJOnnel of any oomt h!lvillg 

jurisdlcti6n over any appellate proceedings involving tbis matter; (c) outside counsel of 

record for any~espo11dent, theirassoclated attomeys ®d other employ~es oftheit 1aw 

firm(s), provided they ate not employees ofa N&pondent; (d) anyone re-tained to assist 

outside counsel in the preparation or hearing of this proceeding incl'u.ding consultants, 

provided tbey w-e not affiliated in any way with a respondent and have signed an 

agt'eement to abide by the terms cfth6 protective order; and (e) ®y witness or deponent 

who may have a\rthoted Dr received tbe hrfutmation in quootlt1n. 

8. Disclosure of conndentialmaterlal to ally person described in Paragraph 7 of this 

Orc!et shall he only for the pw:poses of the preparation and hell!'ing ofthis proceeding, or 

aeyappeal therefrom, and i'ol' no other purpose whatsoever, provided, however; that the 

ColUlllission may, subject to taldng appropriate steps to· preserve the confidentiality of 

suoh material, use or disclose IIOJ1fideniialmaterial as provided by it,s Rules of Practice; 

sectiolis 6('1') and 21 ofth® Federal Trade Co1nmission Act; or any othe~· legal obligation 

lmpos~d t!pon the Commission. 

iii. !11 the event that.any confidential material is contained in any pkmding, motion, exhibit 

ot other paper fikd or to he fUed with the Secretruy of the Con1!11issiBn, the Secretary 

ghall be so infonned by the P~yijjing such papers, and suc.h pap<:'.ts shall be flied tn cam~ra. To the extent that sMh that<:rial was odginal!y submitted by a ililrd party, the 

party including the material~ in if$ papers shall immediate.ly notif'y the submitter of such 

iilel!Jsion. Confidential !naterlal contained in the papers shall continue to have in camera 

treatment until further o:t<l.e.!: of·lh:e Adn~inisttative Law Judge, FOVided, however, that 

suoh papers may be furnished to pcirsons or entities who ll:!IIY .receive confidential 

material pursuant to Paragraphs 7 or 8, Upon or after :filing any paper containing 

confide.ntiftl material, the :filing party shall flte on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, ifthe protection for any 

such material expires, a:par!y mny file on the public recotd a duplicate copy which also 

0011tains the formerly protected material. 

3 
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10. If counsel plans to introduce into evidence at the headt>g any document or transcript 

containing confidential material produced by anoH1er party or by a third party, they shall 

provide advance notice to the othe.t• party or third patty for purposes of allowing that 

pal'l:y to seek an order ihat the docll.Ul.ent or transcript b!; grt111ted.t11 camera trl!atmellt. If 

that patty wishes In camera treatment for the document o! transcript, 1:!1~ patty shall file 

an apptoptiate motion with t11e Administrative Law Judge within 5 days ai~er it receives 

such noti~e. Except whro1·~ SllCh an order is granted, all documents and tl'lttlSCl'ipts shall 

be pati of fue public record. Where in camera treatment is granted, a duplicate copy of 

suoh document ol· transcript with the confidential material deleted therefl·om may be 

placed on the public record. 

"11, Ifimy p&;rty receives a dfscovet·y r~:~quest in any illvestigation cr in ilny other 

proceeding Ol' lnatter fuat may reqllire the disclosu.re of confidential matedal submitted by 

another party or thi:td pli:.i:t:)', the recriplent of the discovery request shall promptly notify 

the submitter of teoeiptof suoh request, Unless a shorter "li111e Is mandated by an ordet of 

a coU!t, such nolification shall be in writing and be received by the submitter at least 10 

business days before production; and shall include a copy of this Protective Ordel' and a 

cove,r l~tter that will appti$e the submitter of its rights hel'etll1der. Nothing h~reln shall be 

conshued as requlrhlg the reeiphmt of the discovery request or anyone else covered by 

.thts Order to ohal!e.b.!,l<:i or appeal tUly ordet requil·ing production of confidential materia!, 

to subject itself to atiy penal till~ for non-compliance with any such order, Qt to seek any 

relief from the Adtnfnist"ratlv0 Law Judge or the Commission. The recipient shall not 

oppose the submitter's efi.btts to challet1ge the disclosure of confidential rn.atel'ial. In 

addition, nothing hereill ~hall limit the applicability ofRul(!) 4J l(e) o:fthe Commission's 

Rules ofPractice, 16 CFR 4. I 1 (e), to discovery requests in mlothet proceedillg th~t are 

directe:d to the Commission. 

1:/.. At t11e thne that any constrltl!lttt or other person retained to assist oolll1sel ill the 

pl'epatation ufihis action C(lfl(l(udr;,s participation in ihe action, such petson dhall retum to 

counsel all copies of documents or po11ions thereof desig!lated confidential that are In the 

possession o:f such pef.'l!ll\, to!Jiether with all noti-'S, memoranda or other papers containing 

confidential information. At the cono.l)lsion of this proceeding,. ii)dudillg the exhaustion 

of judicial r0v!ew, the,p!U'tles shall return documents obtained in this action to their 

submitters, provided, hOwev-er, that the . .Con!mission's obligation to retul'n documents 

shall be govemed by the p!·ovisillns of Rule 4.12 ofihe Rules ofPraC!tice, 16 GFR 4J2. 

13. The provision~ ofthis Protective Order, insofar as they restrict '!he communication 

and use of conftd6ntial 4lsC\'fl'@l'Y rnt~tetial, shall, without written permission o:ftl!e 

submitter or further order of the Col1llnis~>1on, corxtitiue to be billdin~ a:fl;er th~:> coMhwion 

of this .proceeding. 

4 

\ 
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Exhibit B 
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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC ______________________ ) 

1. 

CERTIFICATION OF COMPLIANCE AND RECORDS 

Pursuant to 28 U.S.C. § 1746 

I, _________________ (.name and title), have personal 

knowledge of the facts set fmih below and am competent to testify as follows: 

2. I have authority to certify the authenticity of the records produced by 

_______________ (company nan1e) ("the Company") and 

attached hereto. 

3. On behalf of the Company, I hereby certify that me Company has used its best efforts to 

respond to me Federal Trade Commission Subpoena ("Subpoena"). The Company has 

conducted a reasonable search and has provided all documents and infonnation in its 

possession, custody, or control that are responsive to the requests contained in the 

Subpoena and has substantially complied wim those requests. 

4. The documents produced and attached hereto by the Company in response to the 

Subpoena are originals or true copies of records of regularly conducted activity that: 

a) were made at or near me time of the occurrence of me matters set forth by, or 

from infonnation transmitted by, a person wim knowledge of those matters; 

b) were kept in the course of the regularly conducted activity of the Company; and 

c) were made by the regularly conducted activity as a regular practice of me 
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Company. 

I certify under penalty of pe1jury that the foregoing is true and correct. 

Executed on---------> 2014. 

(N arne, Title) 
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Exhibit C 
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As of 08/18/2011 

Bureau of Consumer Protection Production Guide 

An eDiscovery Resource 

This guide explains what the Bureau of Constm1er Protection (BCP) at the Federal 

Trade Commission (Commission) generally requires in response to a Civil Investigative 

Demand (CID) or a subpoena. The suggested formats are based on BCP's experience 

with many different submissions; follow them to organize your submission and minimize 

the chance of incompatibility with BCP's processes and systems. 

This resource is intended as gnidance and does not supersede instructions in any 

CID or subpoena. Please contact the Commission counsel identified in CID or subpoena 

to discuss any specific issues you may have with collecting, formatting, or submitting 

documents. 

1. Getting Started: Protocols for All Submissions 

Before processing documents in response to a formal request, please note: The 

following protocols apply to ALL formats submitted to BCP. BCP has additional 

requirements pertaining to metadata, format, etc., for certain types of documents. See 

section 2 of these instructions (entitled "Preparing Collections") for details. 

a. Concordance Version and Load Files 

BCP uses LexisNexis® Concordance® 2008 v 10.05. With the production, you 

must submit: 

• an Opticon image load file (OPT) containing a line for every image 

file in the production, and 

• a Concordance delimited data load file (DAT) containing a line for 

every document in the production, with Bates references, metadata 

fields, and native file links where applicable. 

b. Virus Scanning 

All electronic documents and production media shall be scmmed and free of 

viruses prior to shipping to BCP. BCP will request replacement for any infected media, 

which may affect the timing of your compliance with BCP's request. 

c. Extracted Text I OCR 

Submit text: 

• as document-level text files, 

• named for the beginning Bates number, and 

• organized into a folder separate from images. 

BCP cannot accept Unicode text files and will request replacement files if 

received. 
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d. Deduplication 

You must have the approval of Commission counsel to globally de-dupe or to 

apply email threading. You do not need prior approval of Commission counsel to 

deduplicate within a custodian's document set. 

e. Labeling & Numbering Files 

For image file names, bates numbers and document identification numbers (Doc 

IDs), use a consistent number of numerals to prevent issues with image display, using 

leading zeros where necessary. Do not use a space to separate the prefix from numbers. 

Acceptable formats (as long as you are consistent) 

• ABC-FTC0000001 

• ABCFTC0000001 

Unacceptable format 

• ABC 0000001 

f. Recommended Delimiters 

BCP strongly recommends using these delimiters in delimited data load files: 

D escr!ptwn S ;ym b o I ASCII Ch aracter 

Field Separator 0 20 

Quote Character ]> 254 

Multi Entry delimiter ® 174 

<Return> Value in data - 126 

g. Image Files 

BCP only accepts image files that are: 

• 300 DPI 

• single-page Group IV TIFF files 

• or color JPEG image files where color is necessary to interpret 

content 

h. Date & Time Format 

Submit date and time data in separate fields so Concordance can load it. 

2. Preparing Collections 

a. Preparing Scanned Documents 

Submit TIFF (or color JPEG) images with OCR text 

2 
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Metadata & Other Information Requirements 

Include the following metadata fields and information in the delimited data load 

file. Alongside each piece of information, BCP recommends a corresponding field name 

for the delimited data load file. 

Document Info I Descri]2tion Concordance Field 

Metadata Name 

Beginning Bates number The beginning bates number for the BEGBATES document 

Ending Bates number The ending bates number for the ENDBATES document 

Page Count The total number of pages in the PGCOUNT document 

Custodian Mailbox where the email resided CUSTODIAN 

b. Preparing Email & Attachments 

Email: Submit TIFF images with extracted text of email 

Attachments: 

• Submit Microsoft Excel and Power Point files in native 

format with extracted text and metadata. 

• Submit Microsoft Access files and other multimedia files 

in native format with metadata onlv. 

• Submit other files and attaclunents as images with extracted 

text and metadata. 

Metadata & Other Information Requirements 

Metadata for Emails 

Document Info I 

Meta data 

Beginning Bates number 

Ending Bates number 

Page Count 

• Preserve the parent/child relationship in email by including 

a reference to all attaclunents. 

• Produce attachments as separate documents and number 

them consecutively to the parent email. 

• Include the following metadata fields and information in 

the delimited data load file. Alongside each piece of 

information, BCP recommends a cmTesponding field name 

for the delimited data load file. 

DescriRtion Concordance Field 

Name 

The beginning bates number for the BEGBATES document 

The ending bates number for the ENDBATES document 

The total number of pages in the PGCOUNT document 

3 
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Custodian Mailbox where the email resided CUSTODIAN 

To Recipient(s) of the email RECIPIENT 

From The pet~on who authored the email FROM 

cc Person(s) copied on the email cc 

BCC Person(s) blind copied on the email BCC 

Date Sent Date the email was sent DATESENT 

Time Sent Time the email was sent TIME SENT 

Subject Subject line of email SUBJECT 

Date Received Date the email was received DATERCVD 

Time Received Time the email was received TIMERCVD 

Child records The beginning bates number(s) of ATTACHMENT])) _(attachments) attachments delimited by comma 

Location or "Path" Location of email in personal FlLEPATH folders/Deleted Items/Sent Items 

Message])) MS Outlook Message ID or similar MESSA GElD number in other mess~ge systems 

Metadata for Attachments 

Document Info I Descr!ution Concordance Field 

Metadata Name 

Beginning Bates number The beginning bates number for the BEGBATES document 

Ending Bates number The ending bates number for the ENDBATES document 

Page Count The total number of pages in the PGCOUNT document 

Custodian The name of the original custodian of CUSTODIAN tl1e file 

Parent Record Beginning bates number of parent PARENTID email 

The date attachment was saved at the 

Creation Date location on the electronic media for CREATEDATE 

the first time 

The time the attachment was saved at 

Creation Time the location on the electronic media CREATETIME 

for the first time 

Modified Date The date/time the attachment was last MODDATE changed, and then saved 

Modified Time The time the attachment was last MOD TIME changed, and then saved 

The time the attachment was last 

Last Accessed Date opened, scanned, or even "touched" LASTACCDATE 

by a user or software activity 

The time the attachment was last 

Last Accessed Time opened, scanned, or even "touched" LASTACCTIME 

by a user or software activity 

4 
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The amount of space the file takes up 

Size on the electronic media. Usually FILE SIZE recorded in kilobytes, however may 

be reported in single bytes 

The name of the attachment including 

File Name the extension denoting the application FILENAME 

in which the file was created 

Native link Relative path of submitted native files NATIVELINK such as Excel spreadsheets 

The SHA (Secure Hash Algorithm) or 

Hash MD5 (Message Digest) hash for the HASH 

original native file if available 

c. Preparing Native Files 

a. Submit Microsoft Access, Excel, and Power Point files in native 

format with extracted text and metadata. 

b. Submit other files and attachments as images with extracted text and 

metadata. 

Metadata & Other Information Requirements 

Include the following metadata fields and information in the delimited data load 

file. Alongside each piece of information, BCP recommends a corresponding field name 

for the delimited data load file. 

M e a a a t d t an dth'J' 0 erm orma ti on reqmremen t s £ or na ti ve fil 1 es 

Document Info I Description Concordance 

Metadata Field Name 

Beginning Bates number The beginning bates number for the document BEGBATES 

Ending Bates number The ending bates number for the document ENDBATES 

Page Count The total number of pages in the document PGCOUNT 

Custodian The name of the original custodian of the file CUSTODIAN 

Creation Date The date attachment was saved at the location on CREATEDATE the electronic media for the first time 

Creation Time The time the attachment was saved at the CREATETIME location on the electronic media for the first time 

Modified Date The date/time the attachment was last changed, MODDATE and then saved 

Modified Time The time the attachment was last changed, and MODTIME then saved 

The time the attachment was last opened, 

Last Accessed Date scanned, or even "touched" by a user or software LASTACCDATE 

activity 

The thne the attachment was last opened, 

Last Accessed Time scanned, or even "touched" by a user or software LASTACCTIME 

activity 

Size The amount of space tl1e file takes up on the FILESIZE electronic media. Usually recorded in kilobytes 

5 
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The name of the file including the extension 

File Name denoting the application in which the file was FILENAME 

created 

Native link Relative path of submitted native files NATIVELINK 

Hash The SHA (Secure Hash Algorithm) or MD5 HASH Hash for the original native file if available 

3. Submitting Your Production 

Once you've prepared documents according to this guide, follow these 

instructions to submit them to BCP. 

a. Media BCP Accepts 

Submit any of the following: 

• For Productions under 10 gigabytes: 

o CD-R CD-ROM optical disks formatted to ISO 9660 

specifications 

o DVD-ROM optical disks for Windows-compatible personal 

computers 

o USB 2.0 flash drives 

• For Productions over 10 gigabytes 

o IDE, EIDE and SATA hard disk drives, formatted in 

Windows-compatible, uncompressed data in a USB 2.0 

external enclosure 

o USB 2.0 flash drives 

b. Submit a Production Transmittal Letter 

For any format, accompany the submission with a letter that includes all of the 

following: 

• volume name, 

• Bates ranges and custodians, 

• total nwnber of records, 

• total nwnber of images or files, 

• list of fields in the order in which they are listed in the data files, 

• date and time format, and 

• confirmation that the number of files on the volume match the load 

files. 

6 
RESPONDENT 

EXHIBIT 

RX-M 

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Resp. Mot. for Leave 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

Office of the Secretary 

Dana B. Rosenfeld, Esq. 

Counsel for Respondent ECM Biofilms 

Kelley Drye & Warren LLP 

Washington Harbour 

3050 K Street, N.W. 

Suite 400 

Washington, D.C. 20007 

Jonathan W. Emord, Esq. 

Counsel for Respondent ECM Biofilms 

Emord and Associates 

11808 Wolf Run Lane 

Clifton, VA 20124 

Peter Arhangelsky, Esq. 

Counsel for Respondent ECM Biofilms 

Emord and Associates 

3210 South Gilbert Road 

Suite 4 

Chandler, AZ 85286 

October 29, 2013 

Re: In the Matter of ECM Biofilms, Inc. 

Docket No. 9358 

Dear Dana, Jonathan, and Peter: 

Enclosed are official service copies of the Administrative Complaint ("Complaint") 

issued in the above-captioned matter, including both the version currently labeled as "nonpublic" 

and the provisionally redacted public version. Pursuant to Rule 4.10(g) ofthe Commission's 

Rules of Practice, 16 C.F .R. § 4.1 O(g), please note that the Commission intends to place the 

currently labeled "nonpublic" version of the Complaint and any exhibits thereto on the public 

record no sooner than 5:00p.m. on Tuesday, November 12, 2013. 

As recited in the Complaint- and pursuant to Rule 3.12, 16 C.F.R. § 3.12- "[a] 

respondent shall file an answer within 14 days after being served with the complaint."! This 

letter serves to notify you of certain policies affecting Part 3 administrative proceedings. 

A complete copy of the Commission's Rules of Practice is available online at 

http:/ /bit.l y/FTCRulesofPractice. 

./ 
Resp. Mot. for Leave 

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Dana B. Rosenfeld, Esq. 

Jonathan W. Emard, Esq. 

Peter Arhangelsky, Esq. 

October 29, 2013 

Page2 

L Notices of Appearance 

Pursuant to Rule 4.1(d), 16 C.F.R. § 4.1(d), "any attorney desiring to appear before the 

Commission or an Administrative Law Judge on behalf of a person or party shall file with the 

Secretary of the Commission a written notice of appearance." A copy of the Notice of 

Appearance form is available online at http://www.ftc.gov/ftc/ftc-232.pdf. All attorneys 

appearing on behalf of the parties, or on behalf of any third parties, must enter a Notice of 

Appearance. The Notice of Appearance form should be accompanied by language "stating the 

basis for eligibility under this section and including the attorney's jurisdiction of 

admission/qualification, attorney identification number, if applicable, and a statement by the 

appearing attorney attesting to his/her good standing within the legal profession." !d. 

2. Filings 

For all filings that must be filed with the Office of the Secretary, we ask that the parties 

email a courtesy copy to the Administrative Law Judge at oalj@ftc.gov and to the Secretary at 

secretary@ftc.gov. Each such courtesy copy should be transmitted at or shortly after the time of 

any filing with the Office of the Secretary. Please note that the oalj@ftc.gov and 

secretary@ftc.gov accounts are to be used only for courtesy copies of pleadings filed with the 

Office of the Secretary, or in accordance with instructions by the Office of Administrative Law 

Judges. The subject line of all submissions to oalj@ftc.gov or secretary@ftc.gov shall set forth 

only the Docket Number and the title of the submission. 

A. FTC E-File System 

Parties in Part 3 administrative proceedings may file public filings through FTC E-File, 

the Commission's electronic filing system? FTC E-File is modeled after the ECF filing system 

used in federal district courts nationwide and conforms to the guidance provided by the Federal 

Rules of Civil Procedure with respect to electronic filing systems. As with the ECF filing 

system, all documents submitted through FTC E-File (a) must be public; (b) must be submitted 

in .PDF format; and (c) must first be properly redacted to remove all nonpublic information.3 

2 Federal Trade Commission: 16 CFR. Parts 3 and 4: Rules of Practice: 

Final Rule, 74 Fed. Reg. 20205, 20208 (May 1, 2009). Commission Rule 4.2(c)(3)(i), 16 C.F.R. 

§ 4.2( c )(3)(i), consequently provides that public electronic copies of documents filed in Part 3 

proceedings "shall be filed as the Secretary shall direct, or through such electronic system as the 

Commission may provide ... " and Commission Rule 4.2(b), 16 C.F.R. § 4.2(b), provides that 

"[e]very page of each such document shall be clearly and accurately labeled 'Public' .... " 

3 Redactions must be effected by completely deleting the in camera or otherwise 

confidential material before filing. Simply masking the in camera or otherwise confidential 

material -- through the use, for example, of a white type font -- is insufficient. 
Resp. Mot. for Leave 

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Dana B. Rosenfeld, Esq. 

Jonathan W. Emord, Esq. 

Peter Arhangelsky, Esq. 

October 29,2013 

Page 3 

Please note that electronically filing a document via FTC E-File does not constitute 

service on the parties in the matter and does not fulfill any additional requirements that the 

Administrative Law Judge assigned in this matter or the Commission may establish regarding the 

submission of courtesy copies. 

Parties cannot use FTC E-File to file documents containing in camera or otherwise 

confidential material or labeled "IN CAMERA" or "CONFIDENTIAL." Each such document 

must instead be filed in paper form, with a CD or a DVD containing the electronic version, in 

Room H-113 ofthe Office ofthe Secretary.4 

Should you have any questions regarding FTC E-File, a copy of the FTC E-File User 

Manual is available at https://ftcefile.gov/FTC_E-filing/User Manual-Filers.pdf, or you can 

contact Dolores Wood at (202) 326-2506 or dwood@ftc.gov, or Bernita Lofty at (202) 326-3117 

or blofty@ftc.gov. 

B. Filings Before the Administrative Law Judge 

Please make sure that filings directed to the Administrative Law Judge bear the following 

caption: 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

This will ensure the filing is properly directed to the Office of Administrative Law Judges 

for consideration. 

C. Filings Before the Commission 

In the event a party files a dispositive motion, such as a motion to dismiss, a motion to 

strike, or a motion for summary decision (and responses and replies thereto), 5 

or an interlocutory 

motion appealing a decision by the Administrative Law Judge, such pleadings should be filed for 

consideration by the Commission. 

All pleadings for consideration by the Commission (rather than by the Administrative 

Law Judge) should include the following caption: 

4 

5 

See Rule 4.2(c)(3)(ii), 16 C.F.R. § 4.2(c)(3)(ii). 

See Rule 3.22 (a), 16 C.F.R. § 3.22 (a). 
Resp. Mot. for Leave 

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Dana B. Rosenfeld, Esq. 

Jonathan W. Emord, Esq. 

Peter Arhangelsky, Esq. 

October 29, 2013 

Page4 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill 

Maureen K. Ohlhausen 

Joshua D. Wright 

The caption should not include any reference to the recusal or non-participation of any 

particular Commissioner, as those terms only refer to a particular Commissioner's vote on a 

specific motion. 

When filing pleadings for consideration by the Commission, the party should also deliver 

12 paper copies of the filing to the Document Processing Section in Room H-113 of the 

Headquarters Building, located at 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.6 

In addition, the party should email a courtesy copy of each such filing to the Secretary's Office at 

secretary@ftc. gov. 

3. Subpoenas 

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 form7 and deliver 

such form to Bernita Lofty via email at blofty@ftc.gov or via mail or hand delivery to 600 

Pennsylvania Avenue, N.W., Room H-113, Washington, D.C. 20580. 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. 

As a reminder, before mailing or delivering a given subpoena, please make sure that the 

field on the subpoena labeled "Counsel and Party Issuing Subpoena" (field 8 or 9) includes the 

name and contact information (including phone number) of the counsel to whom any responses 

or questions should be addressed and expressly identifies the party you represent, i.e., Complaint 

Counsel or Respondent. 

6 See Rule 4.2(c)(1), 16 C.F.R. § 4.2(c)(1). 

7 Copies of the four types of subpoenas-- Subpoena Ad Testificandum Deposition, 

Subpoena Ad Testificandum Adjudicative Hearing, Subpoena Duces Tecum, and Subpoena To 

Permit Inspection of Premises -- are attached to this letter. If a party requires a witness to travel 

in order to provide testimony at an adjudicative hearing, counsel should use Form 1157, a copy 

of which is attached to this letter, to seek reimbursement for all or some of the travel expenses 

the witness incurs. 
Resp. Mot. for Leave 

Exh. RX-M

PUBLIC DOCUMENT

Dana B. Rosenfeld, Esq. 

Jonathan W. Emord, Esq. 

Peter Arhangelsky, Esq. 

October 29, 2013 

Page 5 

* * * 

If you have any questions regarding this letter, please contact either April Tabor, 

at atabor@ftc.gov, or me at dclark@ftc.gov. Thank you for your attention. 

c;\in~erel/ '!&1--- ~~Jark Secretary