04 21 2014

569549

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COl\1MISSI 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) _____________ ) 

Docket No. 9358 

PUBLIC DOCUMENT 

EMERGENCY MOTION FOR A PROTECTIVE ORDER 

Pursuant to Rule 3.3l(d), and for the reasons the accompanying Memorandum explains, 

Complaint Counsel asks the Court to order that third party depositions be divided into 

confidential and non-confidential segments. Although we cleared deposition dates with ECM's 

counsel ten days ago, cleared dates with deponents, served deposition subpoenas, made 

associated travel plans (including trips to Honolulu and San Francisco), arranged for rooms, and 

booked reporters, ECM did not inform us until Thursday evening that its CEO, Robert Sinclair 

would attend these depositions (and others). We immediately began to meet and confer 

regarding the confidentiality issues Mr. Sinclair's attendance raises, and Complaint Counsel will 

continue to negotiate during the pendency of this motion. However, because the first deposition 

is scheduled for April28, Complaint Counsel respectfully requests that the Court resolve this 

motion by the end of the week, so that both parties will understand their rights and obligations 

prior to the deposition. 1 

DATED: April 21, 2014 

Ka e · e··Johnson (kjohnson3@ftc.gov) 

J 1an 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 

1 So that ECM could begin preparing a response, Complaint Counsel nQtified ECM' s 

counsel on Friday that, if we could not reach an agreement, we would seek expedited relief. 
MEET AND CONFER CERTIFICATION 

Complaint Counsel conferred with opposing counsel in a good faith effort to resolve by 

agreement the issues raised by the motion, but the parties were unable to reach such an 

agreement. The conference took place telephonically on April 18, 2014, at approximately 12:30 

PM. Jonathan Cohen participated on Complaint Counsel's behalf. Lou Caputo participated on 

ECM's behalf. Jonathan Cohen and Lou Caputo had another teleconference regarding these 

issues later that afternoon, and the parties' continued negotiations via electronic mail. 

DATED: Aplil21 , 2014 

Kath ·n ob.nson (kjohnson3@ftc.gov) 

Jo n 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 
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 

[PROPOSED] ORDER 

GRANTING COMPLAINT COUNSEL'S MOTION FOR AN EMERGENCY 

PROTECTIVE ORDER 

This matter having come before the Chief Administrative Law Judge on April21, 2014, 

upon an Emergency Motion for a Protective Order by Complaint Counsel, and having considered 

all supporting and opposing submissions, and for good cause appearing, it is hereby ORDERED 

that Complaint Counsel's Motion Is GRANTED. 

It is ORDERED that third party depositions be divided into confidential and nonconfidential segments based on the designations that exist when the deposition begins. 

It is FURTHER ORDERED that ECM's officers and employees may not attend portions 

of third party depositions related to information that the third party has designated "confidential" 

prior to the deposition. Subject to the Protective Order, ECM's officers and employees may 

attend the non-confidential portions of the deposition. 

SO ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 
CERTIFICATE OF SERVICE 

I hereby certify that on April21, 2014, I caused a true and conect copy of the foregoing 

to be served as follows: 

One electronic copy to the Office of the Secretary, and one copy through the FTC's e-filing system: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic 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 the Respondent: 

Jonathan W. Emard 

Emard & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: j emord@emord.com 

Lou Caputo 

Emard & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emard & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@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 adjud' 

Date: April21, 2014 

Ka ohnson (kjohnson3@ftc.gov) 

V Jo an 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 
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 DOCUMENT 

MEMORANDUM IN SUPPORT OF COMPLAINT COUNSEL'S EMERGENCY 

MOTION FOR A PROTECTIVE ORDER 

Pursuant to Rule 3.31(d), Complaint Counsel respectfully requests that the Court limit the 

attendance ofRespondent ECM Biofilms, Inc.'s ("ECM's") officers at depositions when such 

attendance would violate the Court's October 22, 2013 Protective Order. Specifically, subject to 

one exception not relevant here,

1 Paragraph 7 prohibits disclosing third party information 

designated "confidential" to ECM itself (as opposed to its attorneys). Relying on the Court's 

Protective Order, numerous third party subpoena recipients (and potential deponents) designated 

their document productions "confidential." However, ECM infonned us Thursday evening ''that 

ECM's President, Bob Sinclair, will appear at all noticed fact depositions between Apri128 and 

May 8." CX-A:l. If he attends these depositions in their entirety,2 we cannot use many critical 

"confidential" documents deponents have produced during the depositions. This would severely 

impair our ability to conduct meaningful discovery. 

For three reasons, the Court should grant the requested relief. First, contrary to ECM's 

claim, Rule 4.l(a)(2)(i) permits a corporate officer to represent his corporation prose-but it 

1 ECM's employees may view third party confidential materials in their capacity as 

"witness[ es] or deponent[s] who may have authored or received the information in question." 

Protective Order~ 7(e). 

2 Complaint Counsel does not object to Mr. Sinclair attending depositions during ECM's 

counsel's questioning (assuming, of course, that ECM's attorneys examine the deponent without 

disclosing confidential information), or during other questioning not involving confidential 

information. However, depending on the deponent, our examinations will involve materials 

designated "confidential." 
PUBLIC DOCUMENT 

does not confer a right for officers to attend depositions when counsel represents the corporation. 

Second, the Protective Order prevents Mr. Sinclair from receiving confidential information, but 

depositions of third parties necessitate that we ask deponents about such material. Third, 

preventing such questioning would significantly prejudice Complaint Counsel, whereas 

preventing Mr. Sinclair's attendance during that questioning would not prejudice ECM. The 

other option ECM proposes- allowing the questioning in principle, but debating third parties' 

confidentiality designations during the depositions-would violate the Court's Protective 

Order, the rights of third party subpoena respondents, and Complaint Counsel's ability to take 

reasonably uninterrupted testimony. 

BACKGROUND 

A. Upcoming Depositions and the Court's Protective Order 

After overcoming multiple attempts to block discovery from ECM's customers, 

Complaint Counsel issued various document subpoenas approximately one month ago. Most 

subpoena recipients requested that we treat their responses as confidential under the Protective 

Order. After reviewing the subpoena returns, we began noticing various depositions. The first 

three include: 

(1) April28: Island Plastic Bags (Honolulu); 

(2) April 29: Down To Earth (Honolulu); and 

(3) May 1: FP International (San Francisco).3 

CXA:2-4 (subpoena excerpts). Significantly, like most third parties, these deponents have 

designated their documents "confidential."4 CX-A:S-6. Furthermore, several third parties have 

3 Complaint Counsel has already made travel and other arrangements for all three 

depositions. Complaint Counsel cleared the upcoming dates with ECM several days before 

ECM notified us that Mr. Sinclair would attend. 

4 Down To Earth made an oral request. See CX-A ~ 2. Most third parties made w:ritten 

requests, although only some stamped individual documents. Significantly, many responded 

without counsel (including Island Plastic Bags and FP International), and they may not have 

understood the precise process associated with designating material "confidential." See 

Protective Order~ 6. We have complied with all requests for confidentiality, even when 

arguably defective, because only the Court can determine whether third parties have sufficiently 

invoked their rights to obtain the Protective Order's benefits. 

2 
PUBLIC DOCUMENT 

expressed concerns to us that ECM will cause them competitive injury ifECM receives certain 

trade secrets. See CX-A:7. 

The Court's Protective Order addresses these concerns by providing that"[ c ]onfidential 

material shall be disclosed only" to five identified groups of people-none of which include 

Respondent's officers or employees. 5 Indeed, Paragraph 7 excludes Respondent's employees 

twice. First, it permits disclosure to "outside counsel of record for any respondent, [and] their 

associated attorneys and other employees of their law firms, provided they are not employees 

of the respondent."6 Second, it permits disclosure of confidential materials to experts 

"provided they are not affiliated in any way with a respondent."7 Thus, neither Complaint 

Counsel nor ECM's attorneys may disclose confidential information to ECM, whether the 

disclosure occurs through deposition questioning or otherwise. 

B. ECM's Initial Position Regarding Confidentiality Designations 

Prior to the instant dispute, ECM took the position (correctly) that- however overbroad 

its own confidentiality designations might be-only the Court could change those designations. 

As the Court will recall, this led to our December 26 Motion To Place Discovery Motions on the 

Public Record, which the Court granted in material part on January 14. Significantly, we did not 

debate confidentiality designations with ECM and then unilaterally determine whether ECM had 

over-designated material; rather, we moved the Court, afforded ECM an opportunity to oppose 

our motion, 8 and, most important, afforded the Court the opportunity to decide the issue. 

Furthermore, citing the Protective Order, ECM has twice refused to allow Complaint 

Counsel to produce to a third party subpoena recipient documents ECM produced to us that 

reflect communications solely between ECM and the subpoena recipient. CX-A:8-9. For 

instance, less than a week ago, we asked ECM: 

5 (Emphasis added). 

6 Protective Order~ 7(c) (emphasis added). 

7 Jd. at~ 7(d) (emphasis added). 

8 Which it did. 

3 
PUBLIC DOCUMENT 

Down To Earth has asked us to disclose communications between ECM and 

Down To Earth. Please advise us whether ECM will waive the "confidential" 

designation for the limited purpose of providing these documents to Down To 

Earth's counsel. 

CX-A:8. ECM responded: "ECM does not consent to or authorize the release of those 

documents to Down To Earth and will not waive the confidential status of them (each was 

marked confidential under the Protective Order)." Id. Even assuming, as is likely, that Down To 

Earth over-designated materials, the CoUlt should not permit ECM to flip-flop between 

demanding strict compliance with the Protective Order and taking a more relaxed approach 

whenever changing theories suits its interests. 

C. ECM's Position Regarding Confidentiality Designations In Light of the 

Upcoming Depositions 

Now confronted with the issue regarding Mr. Sinclair's deposition attendance, ECM will 

not agree that "whatever the deponent entity deems confidential as of the start of the deposition 

[will be] deemed confidential" during the deposition.9 See CX-A:10. Thus, ECM contemplates 

that its counsel (and/or Mr. Sinclair) will discuss with often-unrepresented deponents what 

should be "confidential" during the deposition, and the results of that dialogue would determine 

(potentially on a document-by-document basis) when Mr. Sinclair must leave the room, and 

when he can re-enter. 

Additionally, although ECM pays lip service to its Protective Order obligations, it asserts 

that Mr. Sinclair will remain present in the deposition regardless if ECM believes the 

confidentiality designation would impair ECM's alleged constitutional right to have an officer 

present during civil depositions. See id. ("If the deponents do not agree to change their 

designations, we cannot allow these erroneous or overbroad designations to so easily overcome 

ECM's right to be present during the depositions."); see also CX-A: 11 (citing Mr. Sinclair's 

alleged "right to appear . .. under the Due Process Clause"). 

9 ECM also asserts that it has "no idea" what is designated "confidential," CX-A:7. 

although we produced everything we received from third parties to ECM, including requests for 

confidential treatment. 

4 
PUBLIC DOCUMENT 

LEGAL STANDARD 

Under Rule 3.31 (d), the Court may issue any "order which justice" requires to protect the 

interests of Compliant Counsel and third parties during the discovery process. Although 

Complaint Counsel must show "good cause" for the relief sought, 10 the "heavy burden of 

showing why discovery should be denied" does not apply here, because we are not "resisting 

discovery of relevant infonnation."11 Rather, Compliant Counsel only seeks to enforce the 

Protective Order. 

ARGUMENT 

I. ECM Officers Have No Absolute Right To Attend Third Party Depositions. 

ECM mistakenly refers to Rule 4.1(a)(2)(i) as authorizing Mr. Sinclair's attendance. See 

CX-A: 1. However, Rule 4.1 governs "appearances," and three attorneys have already appeared 

to represent ECM. Rule 4.1 (a)(2)(i) also allows that "[a] corporation or association may be 

represented by a bonafide officer thereof upon a showing of adequate authorization." 

(Emphasis added). Thus, this provision changes the traditional rule that a corporation may only 

appear in court through counsel12 by allowing a non-attorney officer to represent the corporation 

before the Commission. 13 See In the Matter of E. Detective Academy, Inc., 78 F.T.C. 1428, 1971 

FTC LEXIS 367, *63 (F.T.C. June 30, 1971) ("Section 4.1(a)(2) [provides] that 'A corporation 

or association may be represented by a bonafide officer thereof upon a showing of adequate 

authorization.' It is clear that respondents' choice to take advantage of this provision and to 

represent themselves was freely and consciously made."); In the Matter of Wayne Phillips, 1990 

10 In the Matter ofECM BioFilms, Inc., 2014 FTC LEXIS 47, *3 (F.T.C. Mar. 18, 2014). 

u Id. at *3-*4. 

12 See, e.g., Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) ("It has 

been the law for the better part of two centuries ... that a corporation may appear in the federal 

courts only through licensed counsel"). 

13 To the extent any arguable ambiguity exists, Section 4.1(a)(2)(i) appears between 

4.1(a)(1), which governs attorney admission, and 4.1(a)(2)(ii), which allows experts to crossexamine other experts under certain circumstances. Thus, exactly as its title suggests, Section 

4.1 is addressed to admission, not attendance. 

5 
PUBLIC DOCUMENT 

FTC LEXIS 330, *1-*2 (F.T.C. Sept. 21, 1990) ("ASI shall obtain counsel or shall appoint an 

officer pursuant to§ 4.1(a)(2) of the Ru1es of Practice who is located in the United States and 

who shall enter an appearance as its representative[.]"). Accordingly, Rule 4.1(a)(2) affords Mr. 

Sinclair a right to represent ECM, not an absolute right to attend depositions when he already has 

well-qualified and effective counsel.14 

II. The Protective Order Prohibits Mr. Sinclair's Attendance During Questioning 

About Confidential Material. 

As explained above, the Protective Order prohibits both Complaint Counsel and ECM's 

counsel from disclosing third parties' confidential materials to ECM's officers and employees. 

Furthermore, although corporate officers generally may attend depositions, confidentiality 

concerns provide a sufficient basis to exclude them. See, e.g., 8A FED. PRAC. & PROC. CIV. 

§ 2041 (2013) ("One situation in which it may be desirable to limit the persons who are to be 

present is when a deposition or other form of discovery is likely to elicit confidential infonnation 

that cou1d be harmful in the hands of a competitor.") (collecting cases); see also Compaq 

Computer v. Packard Bell Elec., 163 F.R.D. 329, 339 (N.D. Cal. 1995) (restricting party 

representatives from depositions of a third party that would involve "commercially sensitive" 

information). The need to comply with the Protective Order and the interest in respecting nonparties' designations is good cause to enter the requested relief. 

ill. ECM's Various Proposals Are Unlawful, Substantially Prejudicial, or Both. 

A. Effectively Prohibiting Complaint Counsel From Using Confidential 

Documents During Depositions Would Be Substantially Prejudicial. 

Many subpoena respondents have designated materials "confidential"15 - and often the 

most important documents. Indeed, in many (if not all) cases, a significant portion of Complaint 

Counsel's examination of third parties will involve their internal documents, or documents they 

14 See also In the Matter of Koppers Co., Inc., 74 F.T.C. 1621, 1968 FTC LEXIS 286, 

*15-*16 (F.T.C. Nov. 1, 1968) (rejecting argument "that all officers of the party respondent must 

be permitted to attend [depositions] as a matter of right") (footnote omitted). 

15 CX-A ~3. 

6 
PUBLIC DOCUMENT 

shared with their own customers, all of which they have designated "confidential" in reliance on 

this Court's Protective Order. These documents are often very significant; for instance, such 

documents may include ECM's customers' analyses ofECM's claims, or they may exhibit 

ECM's claims being forwarded from ECM's customers to other entities in the stream of 

commerce. If Complaint Counsel cannot ask questions about these documents, we cannot 

conduct useful examinations and our ability to prepare our case will be prejudiced. 

In contrast, enforcing the Protective Order will not prejudice ECM. Its counsel will 

attend the depositions and represent ECM's interests. Furthermore, under the Protective Order, 

ECM is not entitled to receive information third parties designated as "confidential." As such, its 

failure to obtain infonnation it is not allowed to have cannot be "prejudice." 

B. Debating Confidentiality Designations During Depositions Would Violate the 

Protective Order, the Rights of Third Party Subpoena Respondents, and 

Complaint Counsel's Right To Reasonably Uninterrupted Testimony. 

Sorting out what is "confidential" during the deposition is unlawful and unfair for several 

reasons. First, ECM must comply with the Protective Order no matter how strong its argument is 

that third parties have improperly designated materials as "confidential." Second, the correct 

procedure-and the one that protects third parties' rights-is to move the Court to resolve the 

issue (exactly as Complaint Counsel did in December).

16 This enables the affected party an 

opportunity to be heard, and allows the Court the chance to rule. ECM should have filed such a 

motion weeks ago, and its failure to do so is neither our responsibility nor that of the 

deponents. 17 

16 As we have told ECM, Complaint Counsel likely would support such relief, as we 

agree that third parties have over-designated materials (although ECM consistently has done the 

same). 

17 Indeed, given the unique relationship between ECM and FP International ("FP"), see 

CX-A:9 at 2 to Complaint Counsel's Opposition to ECM's Second Motion for a Protective Order 

(Feb. 28, 2014), ECM has always known that, if the Court permitted depositions, FP was likely 

to be deposed. FP responded to our subpoena on March 28 and requested confidential treatment, 

see CX-A:6, and ifECM thought FP had improperly designated documents, ECM should have 

sought in camera inspection and relief from the Court in a timely manner. 

7 
PUBLIC DOCUMENT 

Third, because ECM will not agree to respect confidentiality designations that exist when 

the depositions begin, ECM intends to challenge them during the depositions. ECM thus would 

place immense pressure on often-unrepresented deponents, who may hesitate to ask Mr. Sinclair 

to leave in the presence of his attorneys. Furthennore, it is unclear whether Mr. Sinclair must 

leave during the debate over whether particular questions involve confidential material (this is 

another potential disruption). Fourth, because ECM will not accept the designations as they exist 

when the deposition begins, Complaint Counsel may be forced to stop the deposition repeatedly 

to allow Mr. Sinclair in and out of the room. Whatever ECM's intent, the effect ofECM's 

position is that there would be numerous interruptions, both from colloquy over designations, 

and from Mr. Sinclair's likely frequent arrivals and departures.

18 By far, the easiest approach is 

to divide each examination into confidential and non-confidential portions, much as an 

examination involving in camera materials would occur at trial. 

CONCLUSION 

For these reasons, we respectfully ask the Court to order that the depositions be divided 

into confidential and non-confidential segments based on the designations that exist when the 

deposition begins. 

Dated: April21, 2014 Respectfully submitted, 

ohnson (kjohnson3@ftc.gov) 

J an Cohen Gcohen2@ftc.gov) 

1sa 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 

18 For Complaint Counsel, it would be easier to have Mr. Sinclair observe the entire 

deposition rather than enter and exit the room- but we cannot agree to violate the Protective 

Order or abrogate third parties' rights without notice. 

8 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on April21, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

One electronic copy to the Office of the Secretary, and one copy through the FTC's e-filing system: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretruy@ftc.gov 

One electronic 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 the Respondent: 

Jonathan W. Emord 

Emord & Associates, P. C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@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 adj ~· ~c:uv 

Date: April21, 2014 

9 

a ohnson (kjohnson3@ftc.gov) 

an Cohen (jcohen2@ftc.gov) 

1sa 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 
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 ) PUBLIC DOCUMENT

)

EXHIBITS IN SUPPORT OF COMPLAINT COUNSEL’S

EMERGENCY MOTION FOR A PROTECTIVE ORDER
Complaint Counsel

Exhibit A

CX-A
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 DOCUMENT 

DECLARATION OF JONATHAN COHEN IN SUPPORT COMPLAINT COUNSEL'S 

EMERGENCY MOTION FOR A PROTECTIVE ORDER 

In accordance with 28 U.S.C. § 1746, I declare under penalty ofpe1jury that the 

following is true and correct: 

1. I am over 18 years of age, and I am a citizen ofthe United States. I am employed 

by the Federal Trade Commission ("FTC") as an attomey in the Division of Enforcement in the 

Bureau of Consumer Protection. I am an attomey of record in the above-captioned matter, and I 

have personal knowledge of the facts set forth herein. 

2. Down To Earth orally requested that its documents receive confidential treatment. 

3. Many subpoena respondents have designated materials "confidential." 

4. Attachment 1 hereto is a hue and correct copy of an email from Peter 

Arhangelsky to Complaint Counsel dated April17, 2014, at 7:55PM. 

5. Attachment 2 hereto is a true and correct copy of a portion of a subpoena to Island 

Plastic Bags, dated April15, 2014. 

6. Attachment 3 hereto is a true and con·ect copy of a pmtion of a subpoena to Down 

To Earth, dated Apri115, 2014. 

7. Attachment 4 hereto is a true and correct copy of a portion of a subpoena to FP 

International, dated April15, 2014. 

8. Attachment 5 hereto is a true and correct copy of a letter from Island Plastic Bags 

dated March 24, 2014. 

9. Attachment 6 hereto is a true and correct copy of a letter from FP International 

dated March 28,2014. 

10. Attachment 7 hereto is a true and correct copy of a letter from Complaint Counsel 

to ECM's counsel dated April18, 2014. 

11. Attachment 8 hereto are true and correct copies of emails between Jonathan 

Cohen and Peter Arhangelsky dated April15, 2014 and April16, 2014. 
12. . Attachment 9 hereto are true and correct copies of emails between Jonathan 

Cohen and Peter Arhangelsky dated March 24, 2014 and March 25, 2014. 

13. Attachment 10 hereto is a true and correct copy of an email from Peter 

Arhangelsky to Complaint Counsel dated Ap1il 20, 2014. 

14. Attachment 11 hereto is a true and correct copy of an email from Lou Caputo to 

Complaint Counsel dated April18, 2014. 

Executed this 21st day of April, 2014 in Washington, D.C. 

2 
Complaint Counsel

Exhibit A

Attachment 1

CX-A:1
&RKHQ -RQDWKDQ

From: Peter Arhangelsky <PArhangelsky@emord.com>

Sent: Thursday, April 17, 2014 7:55 PM

To: Johnson, Katherine

Cc: Cohen, Jonathan; Jillson, Elisa; Lou Caputo; Jonathan Emord

Subject: Dkt. No. 9358; Fact Witness Depositions

Counsel:

This email serves as formal notice that ECM’s President, Bob Sinclair, will appear at all noticed fact depositions between

April 28 and May 8. See Rule 4.1(a)(2). Under Rule 4.1(a), Mr. Sinclair will appear and represent the interests of the

corporation in his capacity as a bona fide officer.

Sincerely,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | 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. 

PUBLIC DOCUMENT

CX-A:1
Complaint Counsel

Exhibit A

Attachment 2

CX-A:2
PUBLIC DOCUMENT

CX-A:3 at 1

SUBPOENA AD TESTIFICANDUM 

DEPOSITION 

Provided by the Secretary of the Federal Trade Commission, and 

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

1. TO 

Island Plastic Bags, Inc. 

c/o Adrian Hong 

99-1330 Koaha Pl. 

Aiea, HI 96701 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to appear and give testimony at the taking of a deposition, at the date and time specified in 

Item 5, and at the request of Counsel listed in Item 8, in the proceeding described in Item 6. 

3. PLACE OF DEPOSITION 

United States Attorney's Office 

300 Ala Moana Blvd., #6-100 

Honolulu, HI 96850 

6. SUBJECT OF PROCEEDING 

In re: ECM Biofilms, Inc., Docket No. 9358 

4. YOUR APPEARANCE WILL BE BEFORE 

Complaint Counsel and other designated counsel 

5. DATE AND TIME OF DEPOSITION 

April 28, 2014 at 8:45AM 

Please see attached schedule for deposition topics pursuant to 16 C.F.R. 3.33(c)(1) 

7. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

8. 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 

l( \S.l \4--" 

APPEA 

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 

listed in Item 8, and upon all other parties prescribed 

by the Rules of Practice. 

FTC Form 70-C lrev. 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 8 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 8. 

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

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

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 
PUBLIC DOCUMENT

CX-A:3 at 2

RETURN OF SERVICE 

I hereby certify that a duplicate original of the within 

subpoena was duly salVed: (check the method used) 

0 inperson. 

0 by registered mail. 

€; by leaving copy at principal office or place of business, to 1vit: 

Fed Ex, per FTC Rule 4.4(a)(2) 

on the person named herein on: 

(Month, day, and year) 

(Name of person making service) 

(Ofticlal title) 
Complaint Counsel

Exhibit A

Attachment 3

CX-A:3
PUBLIC DOCUMENT

CX-A:3 at 1

SUBPOENA AD TESTIFICANDUM 

DEPOSITION 

Provided by the Secretary of the Federal Trade Commission, and 

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

1. TO 

Down To Earth All Vegetarian Organic & Natural 

c/o Franklin A. Santana, Marketing Director 

2525 South King Street 

Honolulu, HI 96826 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to appear and give testimony at the taking of a deposition, at the date and time specified in 

Item 5, and at the request of Counsel listed in Item 8, in the proceeding described in Item 6. 

3. PLACE OF DEPOSITION 

United States Attorney's Office 

300 Ala Moana Blvd., #6-100 

Honolulu, HI 96850 

6. SUBJECT OF PROCEEDING 

In re: ECM Biofilms, Inc., Docket No. 9358 

4. YOUR APPEARANCE WILL BE BEFORE 

Complaint Counsel and other designated counsel 

5. DATE AND TIME OF DEPOSITION 

April 29, 2014 at 8:45AM 

Please see attached schedule for deposition topics pursuant to 16 C.F.R. 3.33(c)(1) 

7. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

DATE SIGNED 

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 forfailure 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 8, and upon all other parties prescribed 

by the Rules of Practice. 

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

8. COUNSEL AND PARTY ISSUING SUBPOENA 

Complaint Counsel 

Katherine Johnson (202) 326-2185 

Jonathan Cohen (202) 326-2551 

Elisa Jillson (202) 326-3001 

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 8 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 8. 

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

online at .b.ttp:l/bit.ly/FER.ularuill:~. Paper copies are 

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 
PUBLIC DOCUMENT

CX-A:3 at 2

RETURN OF SERVICE 

I hereby certify that a duplicate original of the within 

subpoena was duly served: (check the method useci) 

0 in person. 

0 by registered mail. 

@ by leaving copy at principal office or place of business, to wit: 

Fed Ex, per FTC Rule 4.4(a)(2) 

on the person named herein on: 

(Month, day, and year) 

(Name of person making se/Vice) 

(Official title) 
Complaint Counsel

Exhibit A

Attachment 4

CX-A:4
PUBLIC DOCUMENT

CX-A:4 at 1

SUBPOENA AD TESTIFICANDUM 

DEPOSITION 

Provided by the Secretary of the Federal Trade Commission, and 

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

1. TO 

Free-Flow Packaging International, Inc. 

c/o James Blood, SVP & General Counsel 

34175 Ardenwood Boulevard, Suite 201 

Fremont, California 94555 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to appear and give testimony at the taking of a deposition, at the date and time specified in 

Item 5, and at the request of Counsel listed in Item 8, in the proceeding described in Item 6. 

3. PLACE OF DEPOSITION 

Federal Trade Commission 

901 Market Street, Suite 570 

San Francisco, California 94103 

6. SUBJECT OF PROCEEDING 

In re: ECM Biofilms, Inc., Docket No. 9358 

4. YOUR APPEARANCE WILL BE BEFORE 

Complaint Counsel and other designated counsel 

5. DATE AND TIME OF DEPOSITION 

May 1, 2014 at 9:00AM 

Please see attached schedule for deposition topics pursuant to 16 C.F.R. 3.33(c)(1) 

7. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

DATE SIGNED 

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 1 0 

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 8, and upon all other parties prescribed 

by the Rules of Practice. 

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

8. COUNSEL AND PARTY ISSUING SUBPOENA 

Complaint Counsel 

Katherine Johnson (202) 326-2185 

Jonathan Cohen (202) 326-2551 

Elisa Jillson (202) 326-3001 

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 8 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 8. 

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

online at bttp'//bit.lyJFTCRulesofPrac!ice. Paper copies are 

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 
PUBLIC DOCUMENT

CX-A:4 at 2

RETURN OF SERVICE 

I hereby certify that a duplicate original of the within 

subpoena was duly served: (check the method used! 

0 inperson. 

0 by registered mall. 

@ by leaving copy at principal office or place of business, to wit: 

Fed Ex, per FTC Rule 4.4(a)(2) 

on the person named herein on: 

(Month, day, and year) 

(Name of person making sllMce) 

{Offlclal title) 
Complaint Counsel

Exhibit A

Attachment 5

CX-A:5
PUBLIC DOCUMENT

CX-A:5 at 1

Elisa Jillson 

Federal Trade Commission 

600 Pennsylvania Ave, NW, Mailstop M-8102B 

Washington, DC 20580 

Adrian Hong, General Manager 

Island Plastic Bags, Inc. 

99-1330 Koaha Place 

Aiea, Hl96701 

Dear Ms. Jillson, 

This letter is in reply to the subpoena sent by you on behalf of the Federal Trade Commission (FTC) to 

Island Plastic Bags, Inc. regarding Docket Number 9358. The company has complied with the subpoena 

. to the best of its abilities given the limited timeframe and the limitations of our resources. Contained in 

the packet that this letter was sent in should be the following, which you have requested: 

-It would have been an enormous effort to collect a sample of each bag. In addition, some 

of the bags are custom specifications that the company does not keep in stock. 

The set up and take down co one ag 

as a sample for each specification is too prohibitive. Instead, the company has provided eight samples of 

he following is a list of the samples you should have received as well as the 

packing sample you should have received: 

• Bags 

1. BD366017N- 36X60 17 Microns Natural 

2. BD11622T (Uncut) -11X6.5X22 Whit e T-Shirt 

3. BD434817N- 43X4817 Microns Natural 

4. BD10620T - 10X6X20 White T-Shirt 

5. BD334016N- 33X40 16 Microns Natural 
PUBLIC DOCUMENT

CX-A:5 at 2

6. BD243315W- 24X3315 Microns White Talll<itchen Liner 

7. BD242408N- 24X24 8 Microns Natural 

8. BD85163T- 8X5X16 3 Mil White T-Shirt 

• Retail Packaging 

1. Talll<itchen Liner Retail Packaging 

We have provided documents and emails regarding the marketing of~roducts on the flash drive 

contained within this packet. Unfortunately, we do not have the capability of complying with the Bureau 

of Consumer Protection's (BCP) electronic format guidelines. Island Plast ic Bags is a small privately held 

corporation with only four office staff with a total staff of sixteen. We do not have the resources or 

expertise to comply with BCP's guidelines nor do we have enough time to gain such expertise given the 

tight timeframe of the subpoena. Please note I have put the confidential documents (emails) in the 

folder labeled "CONFIDENTIAL - FTC DOCI<ET NO. 9358." The following is included in the flash drive: 

• Webpages & Website Photos 

• IPBFTC001-IPBFTC009 

• ECM Certification 

• IPBFTCOlO & IPBFTC026 

• Company's ECM Promotional Material 

• IPBFTC025, IPBFTC029 IPBFTC030, IPBFTC032, & IPBFTC043 

• 

• IPBFTCOll 

• Attachment- IPBFTC012 

• IPBFTC013- IPBFTC024 

• IPBFTC027 

• IPBFTC033 

• IPBFTC034 & IPBFTC036 

• Attachment -IPBFTC035 

• IPBFTC037 -IPBFTC042 

• IPBFTC044 

• IPBFTC045 

• Attachment - IPBFTC046 

• IPBFTC047 

• Attachment - I PBFTC048 

• IPBFTC049 

• Attachment- PBFTC054 

• IPBFTCOSO 

• Attachment - IPBFTCOS1 

• IPBFTC052 
PUBLIC DOCUMENT

CX-A:5 at 3

• Attachment- IPBFTCOSS 

• IPBFTC053 

• Attachment- IPBFTC028 

• IPBFTC056 

• Attachment -IPBFTC057 

Should you have any questions or comments regarding the information and samples provided as part of 

the aforementioned subpoena, please do not hesitate to email me at adrianhong@gmail.com or call me 

at 808-484-4046. 

Sincerely, 

~g . Adrian Hong ~ 
PUBLIC DOCUMENT

CX-A:5 at 4

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 ___________________________ ) 

I. 

CERTIFICATION OF COMPLIANCE AND RECORDS 

Pursuant to 28 U.S.C. § 1746 

I, _Adr __ i_an __ Ho_n_g;:_,_Ge_n_er_a_l_Man __ a_ge_r ____ (name and title), have personal 

knowledge of the facts set forth below and am competent to testify as follows: 

2. I have authority to certify the authenticity of the records produced by 

_...::..I:_s_l_an_d_P_l_a ic B_a~g"--s~,_In_c_. ____ (company name) ("the Company") and 

attached hereto. 

3. On behalf of the Company, I hereby certify that the Company has used its best efforts to 

respond to the Federal Trade Commission Subpoena ("Subpoena"). The Company has 

conducted a reasonable search and has provided all documents and information in its 

possession, custody, or control that are responsive to the requests contained in the 

Subpoena and has substantially complied with 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 the time of the occurrence of the matters set forth by, or 

from information transmitted by, a person with 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 the 
PUBLIC DOCUMENT

CX-A:5 at 5

Company. 

I certify under penalty of perjury that the foregoing is true and conect. 

Executed on March 24th , 2014. 
Complaint Counsel

Exhibit A

Attachment 6

CX-A:6
PUBLIC DOCUMENT

CX-A:6

March 28, 2014 

Elisa Jillson 

Jonathan Cohen 

Federal Trade Commission 

600 Pennsylvania Ave. NW, M-81028 

Washington, DC 20580 

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

Subpoena Duces Tecum 

Dear Ms. Jillson and Mr. Cohen: 

INTERNATIONAL® 

34175 Ardenwood Blvd. 

Suite 201 

Fremont. CA 94555 

Phone (650) 261-5300 

Fax (650) 36 1-1 7 13 

http://www.fplntl.com 

Fre.,.Fiaw Packaging ln!erna!kmol. lnc. 

I have enclosed the following in response to the Subpoena dated March 17, 2014, issued to FP 

International at our Thornton, Illinois, plant: 

1. Certification of Compliance; 

2. Privilege Log; 

3. Responses to Subpoena. 

Please note that the documents submitted in response to the Subpoena are confidential 

documents of FP International. 

As I mentioned to Mr. Cohen in our telephone call last week, I will be on vacation next week but 

will return the following week. 

SVP and General Counsel 
Complaint Counsel

Exhibit A

Attachment 7

CX-A:7
PUBLIC DOCUMENT

CX-A:7 at 1

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 

Clifton, VA 20124 

April18, 2014 

Elisa Jillson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-3001; ejillson@ftc.gov 

Peter Arhangelsky 

Lou Caputo 

Emord ~Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

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

Emord & Associates' Confidentiality Obligations 

Counsel, 

Several attorneys representing ECM's customers have raised concerns with 

Complaint Counsel regarding your firm's obligations under the October 22, 2013 Protective 

Order. As you know, various third parties produced documents to Complaint Counsel 

designated "confidential," and we produced them to you in accordance with our obligations. 

Significantly, however, the Protective Order only permits disclosure to "outside counsel of 

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

firms, provided they are not employees of the respondent."1 Likewise, you may disclose 

such materials to experts "provided they are not affiliated in any way with a 

respondetit."2 Subject to one exception irrelevant here/ the Protective Order prohibits 

1 Protective Order, 7(c) (emphasis added). 

2 Id. at , 7(d) (emphasis added). 

3 ECM's employees may view third party confidential materials in their capacity as 

"witness[es] or deponent[s] who may have authored or received the information in 

question." Protective Order, 7(e). 
PUBLIC DOCUMENT

CX-A:7 at 2

Emord & Associates, P.C. 

In the MatterofECM BioFilms, Inc., No. 9358 

Page2 

Emord & Associates, P.C. ("the Emord Firm") from disclosing confidential materials to any 

employee or officer of ECM Biofilms, Inc. ("ECM'') including, without limitation, ECM 

CEO Robert Sinclair. 

Significantly, the Emord Firm is solely responsible for complying with this aspect of 

the Protective Order, and for the financial consequences of any noncompliance. Complaint 

Counsel has no evidence that the Emord Firm has shared, or will share, any confidential 

materials with Mr. Sinclair. However, to facilitate production from third parties and avoid 

any possible misunderstanding, we reiterate that the Protective Order prohibits the Emord 

Firm from disclosing confidential materials to Mr. Sinclair or anyone else at ECM. 

therine Johnson 

Jonathan Cohen 

Elisa Jillson 
Complaint Counsel

Exhibit A

Attachment 8

CX-A:8
&RKHQ -RQDWKDQ

From: Peter Arhangelsky <PArhangelsky@emord.com>

Sent: Wednesday, April 16, 2014 5:10 PM

To: Cohen, Jonathan

Cc: Jillson, Elisa; Johnson, Katherine; Lou Caputo; Jonathan Emord

Subject: RE: Down To Earth

Counsel:

Concerning your request that we authorize the release of the documents ECM supplied in response to discovery that

reference or relate to Down to Earth, ECM does not consent to or authorize the release of those documents to Down to

Earth and will not waive the confidential status of them (each was marked confidential under the Protective Order).

Thanks,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | 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: Tuesday, April 15, 2014 5:57 PM

To: Lou Caputo; Peter Arhangelsky; Jonathan Emord

Cc: Jillson, Elisa; Johnson, Katherine

Subject: ECM: Down To Earth

 Counsel for Down To Earth has asked us to disclose communications between ECM and Down To 

Earth. Please advise us whether ECM will waive the “confidential” designation for the limited purpose of providing 

these documents to Down To Earth’s counsel. 

 Thanks, 

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 

PUBLIC DOCUMENT

CX-A:8
Complaint Counsel

Exhibit A

Attachment 9

CX-A:9
&RKHQ -RQDWKDQ

From: Peter Arhangelsky <PArhangelsky@emord.com>

Sent: Tuesday, March 25, 2014 1:14 PM

To: Cohen, Jonathan; Jonathan Emord; Lou Caputo

Cc: 'Robin Powers'; 'Jonathan Rothschild'; Johnson, Katherine; Jillson, Elisa

Subject: RE: ECM Biofilms, No. 9538 (PPC Industries)

Counsel:

ECM does not agree to waive the confidential status of documents it marked confidential under the Protective Order for

the purpose of providing those documents to parties outside the FTC. We will not agree to vitiate the privilege. That

includes all confidential information from within ECM’s database.

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | 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, March 24, 2014 3:32 PM

To: Jonathan Emord; Peter Arhangelsky; Lou Caputo

Cc: 'Robin Powers'; 'Jonathan Rothschild'; Johnson, Katherine; Jillson, Elisa

Subject: ECM Biofilms, No. 9538 (PPC Industries)

Counsel, 

 The attorneys representing PPC Industries have requested that we provide them with communications 

between ECM and PPC. As you know, ECM produced to us PDF images from a database apparently logging such 

communications, as well as (possibly) copies of the communications themselves. We’d be glad to provide this 

material to PPC, but ECM has designated it all “confidential.” Please let me know if we may disclose it to PPC. 

 Thanks, 

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 

PUBLIC DOCUMENT

CX-A:9
Complaint Counsel

Exhibit A

Attachment 10

CX-A:10
&RKHQ -RQDWKDQ

From: Peter Arhangelsky <PArhangelsky@emord.com>

Sent: Sunday, April 20, 2014 12:29 PM

To: Cohen, Jonathan

Cc: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord

Subject: RE: Docket No. 9358

Hi Jonathan,

We agree with the general proposition that ECM’s representative will not be present in the room when “confidential”

information is discussed, but we cannot agree that “whatever the deponent entity deems confidential as of the start of

the deposition is deemed confidential...” That would be absurd, particularly because we have no idea what those

designations are at this point. Please note that FP International apparently designated every document they supplied as

“confidential” (without stamping individual documents). That includes ECM’s marketing materials, emails with ECM,

and other obviously public or nonͲprivileged information. If the deponents do not agree to change their designations,

we cannot allow those erroneous or overbroad designations to so easily overcome ECM’s right to be present during the

depositions.

We will engage deponents’ counsel immediately next week in an effort to lift certain confidentiality designations for the

limited purpose of these depositions. However, again, if they refuse, we cannot allow their unilateral judgment on

“confidentiality” to dictate ECM’s rights. If we need to “litigate those designations,” we will do so; and that must

obviously happen before the depositions occur. If Bob is erroneously excluded from the deposition, we think that is a

substantial violation of the Rules and an irreparable deprivation of due process. This may require a postponement to

the deposition schedule. Either that, or, if you prefer not to change your travel arrangements, we can take on the

confidentiality issues as they arise during the depositions.

As I mentioned, an overwhelming amount of information deemed “confidential” by the third party deponents is not

confidential. There is no good faith, nonͲfrivolous argument to claim that an ECMͲauthored document (for instance)

cannot be discussed in front of ECM’s representative simply because the third party labeled it “confidential.” So while

we understand your desire to resolve these issues rapidly in advance of the depositions, and we very much appreciate

your cooperation last week, we cannot agree to your exact proposal below, and we do not see the point in threatening a

premature motion for Monday. If anything, the best way to resolve this is to cooperate in our effort to clarify

confidential designations with the third parties.

We can certainly talk again on Monday. But our priority is to reach deponents’ counsel so we can sort this all out

(hopefully) in a manner than works for everyone.

Best,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | 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: Friday, April 18, 2014 4:19 PM

PUBLIC DOCUMENT

CX-A:10 at 1
To: Lou Caputo

Cc: Johnson, Katherine; Jillson, Elisa; Jonathan Emord; Peter Arhangelsky

Subject: RE: Docket No. 9358

Lou, 

 We do not have an agreement, at least not yet. We will file on Monday unless you agree in an unambiguous 

way to the following (genuinely reasonable) proposal: 

(1) Whatever the deponent entity deems confidential as of the start of the deposition is deemed confidential 

throughout the deposition no matter what (thus, no one debates “confidential” designations during the 

deposition). 

(2) ECM can do whatever it likes to encourage third parties to drop “confidential” designations prior to their 

depositions, or to litigate those designations. 

(3) ECM will notify Compliant Counsel a reasonable time before the deposition begins if the deponent has altered 

its “confidential” designations. 

(4) No ECM officer or employee will be in the room during portions of our examination that relate to information 

designated “confidential.” 

(5) Complaint Counsel will act in good faith to segregate confidential portions of the deposition, so that Mr. 

Sinclair (or ECM’s other non-attorney representative) does not have to leave and return unnecessarily. You 

acknowledge that process won’t be perfect. 

(6) ECM and its counsel similarly will act in good faith not to use the confidentiality issues to unnecessarily impair 

the flow of testimony. We acknowledge that process won’t be perfect. 

 Maybe this is what you mean, in which case, we do, in fact, have an agreement. But please make that 

clear. I’m here for a little while longer if it would be helpful to talk. I’d also be glad to speak with you over the 

weekend. We don’t want unnecessary motions practice either. 

 Thanks, 

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: Friday, April 18, 2014 6:51 PM 

To: Cohen, Jonathan 

Cc: Johnson, Katherine; Jillson, Elisa; Jonathan Emord; Peter Arhangelsky 

Subject: Docket No. 9358 

Jonathan,

We reviewed your letter correspondence from earlier this afternoon. Notwithstanding the tone of your letter and the

implications therein, we continue to abide by the standing Protective Order in this case. We will not share confidential

materials with ECM or Mr. Sinclair in preparation for the upcoming depositions of ECM customers. Concerning those

depositions, we will speak with our client about your position that the deponent has the final word about whether

information, documents, and materials are “confidential.” We disagree that material authored by or shared with ECM is

“confidential” such that Bob would need to leave the room when you discuss that information (e.g., ECM marketing

brochures, etc.). That could lead to Bob’s unnecessary exclusion for large portions (if not all) of the depositions.

PUBLIC DOCUMENT

CX-A:10 at 2
We plan to speak with deponents’ counsel next week to discuss Mr. Sinclair’s presence during the depositions. We hope

to narrow their concerns over confidential information, and we will update you promptly. We otherwise think the

parties are in agreement concerning Bob’s attendance generally and, so, motions practice should be unnecessary.

Best,

Lou Caputo | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (602) 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 proh bited by the sender. If this communication 

has been sent to you in error, please notify the sender and then immediately destroy the document. 

PUBLIC DOCUMENT

CX-A:10 at 3
Complaint Counsel

Exhibit A

Attachment 11

CX-A:11
&RKHQ -RQDWKDQ

From: Lou Caputo <LCaputo@emord.com>

Sent: Friday, April 18, 2014 3:08 PM

To: Cohen, Jonathan; Peter Arhangelsky; Jonathan Emord

Cc: Jillson, Elisa; Johnson, Katherine

Subject: RE: Dkt. No. 9358; Fact Witness Depositions

Counsel,

We agree that Bob may be asked to leave the deposition room for certain discussions of “confidential” material. We

also note your willingness to structure the deposition in a reasonable order to avoid confusion and interruptions. We

disagree with the “confidential” nature of some information to be discussed, including, for example, Island Bags’

decision to mark “confidential” many documents authored by ECM and provided to them by ECM. We therefore expect

that Bob will exercise his right to be present for discussions of that type of information, which we can say generally

embodies documents and facts already disclosed or known to ECM.

Although the protective order does not differentiate, we think a distinction can be drawn between “confidential”

information and “attorneys eyes only” information, just as the Federal Courts routinely do in their protective

orders. Perhaps the deponents can dictate whether they seek Bob’s absence at the time of questioning. We have no

objection to Bob’s exclusion during discussions that clearly touch on information confidential to the deponent (as

opposed to ECM or the parties generally). Because we are essentially in agreement, we think motions practice is

unnecessary. We do request, however, that the interpretation of the phrase “confidential” be construed as narrowly as

the rules and protective order permit so that we respect Bob’s right to appear under Rule 4.1(a), Rule 3.33, FRCP 26 &

30, FRE 615(b), and the Due Process Clause of the U.S. Const.

We also need to request that a telephone line be available in each of the deposition rooms to facilitate the participation

of counsel over longͲdistance as necessary.

Best,

Lou Caputo | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 Firm: (602) 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 proh bited 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: Friday, April 18, 2014 7:33 AM 

To: Peter Arhangelsky; Jonathan Emord; Lou Caputo 

Cc: Jillson, Elisa; Johnson, Katherine 

Subject: RE: Dkt. No. 9358; Fact Witness Depositions 

Counsel, 

 We’ve left a voicemail at your office. Please call us about the issue below as soon as possible, and we 

suggest that Mr. Sinclair not make travel arrangements before you speak with us. 

PUBLIC DOCUMENT

CX-A:11 at 1
 Thanks, 

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: Peter Arhangelsky [mailto:PArhangelsky@emord.com]

Sent: Thursday, April 17, 2014 7:55 PM 

To: Johnson, Katherine 

Cc: Cohen, Jonathan; Jillson, Elisa; Lou Caputo; Jonathan Emord 

Subject: Dkt. No. 9358; Fact Witness Depositions 

Counsel:

This email serves as formal notice that ECM’s President, Bob Sinclair, will appear at all noticed fact depositions between

April 28 and May 8. See Rule 4.1(a)(2). Under Rule 4.1(a), Mr. Sinclair will appear and represent the interests of the

corporation in his capacity as a bona fide officer.

Sincerely,

Peter A. Arhangelsky, Esq. | EMORD & ASSOCIATES, P.C. | 3210 S. Gilbert Rd., Ste 4 | Chandler, AZ 85286 

Firm: (602) 388-8899 | Direct: (602) 334-4416 | 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. 

PUBLIC DOCUMENT

CX-A:11 at 2