QR\GlNAL 

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 

COMPLAINT COUNSEL'S REPLY TO RESPONDENT'S RESPONSE TO MOTION 

TO COMPEL PRODUCTION OF DOCUMENTS 

Pursuant to the Court's January 30th Order, Complaint Counsel respectfully files this 

reply to Respondent's opposition to our Motion to Compel. ECM's opposition misrepresents our 

ongoing discovery dispute in three key ways. First, ECM claims that there are no ripe document 

requests, even though there are thirteen outstanding document requests from Complaint 

Counsel's November 27 RFPD. 1 See CCX-A: 1. Second, ECM mischaracterizes the parties' 

proposals, portraying its proposal as a production "pledge[]" that Complaint Counsel has ignored 

and Complaint Counsel's proposal as an unreasonable demand for all ofECM's files. Third, 

ECM falsely accuses Complaint Counsel of misleading the Court. 

ECM' s opposition offers no valid reason why ECM should not immediately produce the 

relevant and responsive documents it has now withheld for more than a month. Significantly, the 

controlling facts remain uncontested: (1) ECM has produced few documents; (2) ECM has not 

produced any documents related to current customers (other than the customer list and de-linked 

revenue list) or a host of other topics; and (3) ECM's "burden" results from its unreasonable 

position that the CEO himself must search for the documents in a time-consuming manner. 

Moreover, Lhe Court should reject ECM's proposal as they specifically designed it to omit 

Capitalized terms not defined herein have the meanings set forth in the Motion to 

Compel. 

1 
responsive and relevant information critical to our case. We ask the Court to grant the relief 

requested in Complaint Counsel's Motion to Compel. 

BACKGROUND 

A. ECM Falsely Asserts There Are No Outstanding RFPDs. 

ECM argues that Complaint Counsel's motion "lacks an essential factual predicate: a 

pending document request for which production was denied." Opp. at 1. This is false for two 

reasons. First, Complaint Counsel withdrew only one of fourteen RFPDs. Thus, thirteen 

requests from the November 27 RFPD remain pending (Request 1-12, 14), and eleven of these 

(1-8, 11-12, and 14) address customer communications. Second, all thirteen remaining RFPDs 

reach documents beyond customer communications, and ECM has produced little in response. 

See Mot. at 2 (detailing ECM's paltry production). 

Specifically, Requests 1-8, 11-12 and 14 target highly relevant information, including 

customer communications. Each requests all "documents"--defined to include "[ e ]lectronic 

mail" as well as any responsive "memorandum oftelephone or in-person conversations, ... 

summary, ... computer database, ... other data compilations from which information can be 

obtained"- related to different topics, such as substantiation, claims, and sales strategy. CCXA:1 at 4.Z The customer communications contained in the Summary Database and the Email 

Archive are clearly responsive to these Requests. For example: 

• Request 1 (for documents regarding product efficacy for biodegradation) reaches 

customer communications in which ECM explains how its product causes plastic to 

biodegrade. 

• Request 2 (for documents regarding biodegradable marketing) covers 

communications in which ECM advises customers on using the logo, cet11ficate, 

website claims to promote "'biodegradable" plastic. 

2 The breadth of this definition is consonant with Commission Rule 3.34(b), which defines 

document to include "written materials, electronically stored information, and tangible things." 

2 
• Request 3 (for documents regarding time for biodegradation) includes 

communications in which ECM explains to customers the expected length of time to 

complete biodegradation. 

• Request 4 (for documents regarding disposal conditions) covers communications in 

which ECM responds to customer questions about whether the product will 

biodegrade in a landfill. 

• Request 5 (for documents regarding two ASTM standards) reaches communications 

in which ECM provides customers information about its ASTM D551 J and D5526 

testing (or lack thereof). 

• Request 6 (for documents regarding claims that ECM Additives cause 

biodegradation) covers communications in which ECM advises customers about the 

type of biodegradable claims it can make thanks to use of the ECM product. 

• Request 7 (for documents that disprove or call into question ECM's claims) includes 

communications in which a customer asks ECM whether its product will truly enable 

biodegradation even though tests do not show such results. 

• Request 8 (for documents regarding any tests conducted on ECM Additives or 

products containing the ECM Additives) reaches communications in which customers 

notified ECM of their own testing of plastic containing the ECM additive. 

• Request 11 (for documents about consumer perception of the ECM additive and 

biodegradability) touches on communications in which customers comment on how 

end-use consumers demand ECM-treated plastics because they will biodegrade 

rapidly. 

• Request 12 (for documents that support or call into question that customers are 

sophisticated) covers communications demonstrating customers' knowledge (or 

ignorance) of landfill conditions, test methods, biodegradation, etc. 

• Request 14 (for documents regarding sales strategy) would include communications 

in which ECM tells a potential downstream customer (e.g., a supermarket) of its plan 

to pitch the ECM additive to plastic bag manufacturers who will sell to the 

supermarket. 3 

3 Complaint Counsel withdrew Request 13, which called broadly for customer 

communications "regarding ECM Additives," because Complaint Counsel recognized that 

Request 13 was not as targeted as its other requests. Moreover, Request 13 was unnecessary as 

the other Requests would elicit the relevant customer communications. 

3 
Thus, ECM' s assertion that Request 13 was "the only one seeking customer 

correspondence," Opp. at 1, is simply inaccurate. Moreover, ECM's argument appears to be 

disingenuous, for two reasons. First, ECM itself identified customer communications contained 

in the Summary Database and Email Archive as responsive to Requests 1-4, 6, 8, 10, 12-14. See 

CCX-A:2 at 6-27; see also id. at 2 ("[The Summary Database excerpt] is responsive to nearly all 

areas of Complaint Counsel's Requests."). Second, even though we withdrew Request 13 on 

January 14, ECM continued to negotiate over the terms of the production (including, at a 

minimum, Summary Database information) through January 21. IfECM truly believed no 

document request were pending, it had no reason to volunteer production of documents. 

Finally, ECM's myopic focus on customer communications overlooks a key aspect of all 

thirteen pending RFPDs: they reach a host of documents other than customer communications 

(e.g., internal emails, memos, reports, emails with testing facilities, and advertising and 

marketing materials). Significantly, in response to these remaining thirteen Requests, ECM has 

produced less than 2000 pages: a redacted excerpt of the Summary Database (see Mot. at 2),4 a 

handful of marketing documents (see id. ), and 500 documents produced almost two years ago 

(see Opp. at 2). 

B. ECM Mischaracterizes the Parties' Proposals. 

The Opposition confuses ECM's proposed production, made during the parties meetand-confer on January 21, for an agreed-upon production.5 See Opp. at 1. At no point did 

Complaint Counsel agree to ECM's outrageous tem1s. See Mot. at 3-4 (explaining proposal). 

4 The redacted excerpt of the Summary Database is a 1212-page PDF, and thus makes up 

the bulk of the material produced to Complaint Counsel. 

5 ECM argues that Complaint Counsel failed to satisfy its meet-and-confer obligation. In 

fact, we met and conferred with ECM about these issues on January 21. 

4 
ECM also mischaracterizes Complaint Counsel's proposals, claiming we "adamantly 

inisted" that ECM produce all of its files, "regardless of relevance or privileged content." Opp. 

at 4. In a similar vein, ECM describes us as refusing "to honor [our] pledge to the Court" to limit 

burdensome discovery. Opp. at 4. Both accusations are nonsense. Complaint Counsel initially 

proposed limiting production to documents in the Summary Database and Email Archive 

responsive to 50 search terms. See Mot. at 2. To further reduce the burden on ECM (and speed 

production), Complaint Counsel then proposed to accept the Summary Database with detailed 

clawback protections for privileged documents in lieu of searching the Summary Database, and 

only use the 50 search terms for documents contained in the Email Archive. See id at 3. 

In short, ECM' s Opposition creates a straw man of uncompromising Complaint Counsel 

and an unjustly maligned defendant. The January emails between counsel tell an entirely 

different story, see Mot. at 2-4 (citing CCX-A:2, A:3, A:4), and provide a more accurate record 

than ECM's ad hominem attacks. 

C. ECM Falsely Claims that Complaint Counsel Misled the Court. 

ECM further attempts to divert attention from its production failures by impugning 

Complaint Counsel's honesty in a number of ways. Below is our response to each ofECM's 

baseless accusations: 

• ECM states that we "omitted ... the fact that ECM has pledged to Complaint Counsel, and 

is committed to disclose in production ... its entire database." Opp. at 1. We did not. 

Our motion explained ECM's offer in detail and why it was clearly unacceptable. See 

Mot. at 3. 

• ECM accuses Complaint Counsel of failing to disclose to the Court that ECM produced 

its current customer list. Opp. at 2. We did not. Complaint Counsel filed a separate 

motion discussing this Vt:!ry topic two days before filing our Motion to Compel. See 

Complaint Counsel's Mot. tor Sanctions. Moreover, the customer list was produced in 

response to an Interrogatory, and, therefore, is not relevant to the Motion to Compel's 

arguments regarding RFPDs. 

5 
• ECM states that we "falsely plead[]" that ECM' s response is nearly a month late. Opp. at 

3. Much of the production is more than a month late. ECM's response was due on 

December 27. Despite this, ECM still has not produced any internal communications, 

any information from the Email Archive, or any new scientific or technical data. 

• According to ECM, Complaint Counsel are "hypocri[tes ]," Opp. at 4, because they 

produced 62,000 documents (more than 30 times what ECM has produced) 11 days after 

the deadline. The slight delay was due to the fact that we converted our files into the 

format that ECM requested. 

• ECM claims that Complaint Counsel "conveniently omits the fact that ... customer 

discovery was premature" until the Court ruled on ECM's motion for a protective order. 

Opp. at 4. In fact, Complaint Counsel addressed this specious argument in the Motion to 

Compel. See Mot. at 7 n. 10. 

• ECM states that Complaint counsel "misrepresents" a meeting with ECM counsel 

regarding ECM's proposed discovery schedule. Opp. at 6. ECM conflates the proposals 

counsel has traded. The emails between counsel throughout January are the best record 

of what actually happened. See Mot. at 2-4 (citing CCX-A:2, A:3, A:4). 

Significantly, however, none of these false accusations goes to the heart of the dispute: 

whether ECM can make a showing of undue burden. ECM fails to address this issue because it 

cannot make that showing. 

ARGUMENT 

A. ECM Has Failed To Establish That Burden and Expense Outweigh the Benefit of 

Producing Documents Critical to This Case. 

Relevant discovery may be curtailed only if that "[t]he burden and expense of the 

proposed discovery" outweigh its likely benefit. 16 C.F .R. § 3.31 ( c )(2)(iii). This is a rare 

circumstance. See In re Polypore Int'l, Inc., 2009 FTC LEXIS 41, at *10 (Jan. 15, 2009) ("Even 

where a ... party adequately demonstrates ... a substantial degree ofhurden, inconvenience, 

and cost, that will not excuse producing [relevant] information .... "). Indeed, a party can 

demonstrates undue burden only if it provides "specific infonnation regarding the burden or 

expense involved in producing the requested documents." In re Lab. Corp. of Am., 2011 FTC 

LEXIS 31, at * 8 (Feb. 28, 2011 ). An "unsupported statement that the requests would take 

6 
months and tens or even hundreds of thousands of dollars to comply with" does not establish 

undue burden. Id.; see also In re Polypore, 2009 FTC LEXIS 41, at *10. 

In our Motion to Compel, we explained the critical relevance of the requested documents 

and why ECM cannot show undue burden. Mot. at 3-7. Nothing that ECM argues in its 

Opposition alters that analysis. Significantly, ECM does not dispute that both the Summary 

Database and the Email Archive contain relevant, responsive documents. Instead, CEO Robert 

Sinclair declares that only he can search for responsive documents at enormous cost in time and 

money. Opp., RX-A at~~ 9-14. This is nothing more than a series of"unsupported 

statement[ s ]" that do not demonstrate burden Cf In re Lab. Corp. of Am., 2011 FTC LEXIS 31, 

at *8. First, other than stating that he is "responsible for maintaining the archived files," id. ~ 12, 

Sinclair fails to explain why the CEO himself must search the files. Second, Sinclair fails to 

explain why ECM must search "each of the over 28,000 master PDF files," id. ~ 10, rather than 

simply searching the server housing the Email Archive. Third, Sinclair does not explain why 

PDF files cannot be searched simultaneously, either by using Adobe itself or the company's 

operating system software (e.g., Windows search function). Fourth, Sinclair does not provide 

any facts about the cost and availability of other search options, such as using a production 

database and/or hiring a litigation support firm. 

In short, Sinclair's declaration simply demonstrates that ECM has unreasonably elected 

burden. Cf Mot. at 5-7 (collecting cases stating that party cannot evade discovery through poor 

operating decisions). An incomplete record should not be the price ofECM's foolhardy 

decisions. 6 

6 ECM also states the entire Email An:hivt: contains 28,000 files, but we have agreeJ that it 

needs to produce documents only from January 1, 2009 forward. ECM does not specifically say 

7 
B. The Court Should Reject ECM's Proposal. 

ECM's proposed production would delay and skew the record in this case. By producing 

only emails that Complaint Counsel identifies from Summary Database review, ECM would be 

able to withhold highly relevant information. For example, Exhibit CCX-A:2/ a highly relevant 

string of emails between a professor, a distributor, an ECM customer, and an ECM employee, 

which calls into question whether ECM has support for its claims, would not be produced, unless 

two conditions were met. First, the Summary Database entry would have to fully convey the 

significance of the email, so that Complaint Counsel would know to request it. Second, ECM 

would have to timely produce the email in response to Complaint Counsel's request. Under such 

regime, it is likely that highly relevant documents--critical to understanding this case-would 

remain solely in ECM's possession. 

CONCLUSION 

For all the reasons stated above, the Court should grant Complaint Counsel's Motion to 

Compel. 

Dated: January 22, 2014 Respectfully submitted, 

~:·//_., 

KaSSi~<kiohnson3@ftc.gov) Jonathan Cohen Gcohen2@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 

how far back the Email Archive goes, but presumably this system has been in place since 1998. 

Thus, iL should not need to search each of the 28,000 t1les. 

7 Complaint Counsel received this email from ECM during the pre-complaint 

investigation. FTC staff requested all of .ECM' s relevant emails. lt received emails from a 

single month for only two custodians. This email was among them. 

8 
STATEMENT REGARDING CONFIDENTIALITY 

Exhibit A, Attachment 3 contains information from which the names ofECM's 

customers arguably could be inferred. Accordingly, Complaint Counsel will submit a public 

version with only this attachment redacted. 

DATED: January 31,2014 

9 

Katheri -J son (kjohnson3@ftc.gov) 

Jonathan Cohen Gcohen2@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 
CERTIFICATE OF SERVICE 

I hereby certify that on January 31, 2014, I caused a true and correct copy of the 

foregoing to be served as follows: 

One hardcopy original and two electronic courtesy copies (on CDs) to the Office of the Secretary: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

Two electronic courtesy copies (on CDs) and one paper 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 the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 Wolf Run 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 adjOOi9l:tQr. 

V// 1 / I I /--/' ·'7 

Date: January 31,2013 C ... ~__./l..-/ "-- ·· 

Katherine J~n-if\johnson3@ftc.gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

10 

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 

EXHIBITS IN SUPPORT OF COMPLAINT COUNSEL'S 

REPLY TO RESPONDENT'S OPPOSITION TO COMPLAINT COUNSEL'S MOTION 

TO COMPEL RESPONDENT TO PRODUCE DOCUMENTS 
Complaint Counsel 

Exhibit A 

CCX-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 ELISA JILLSON IN SUPPORT OF COMPLAINT COUNSEL'S 

MOTION TO COMPEL RESPONDENT TO PRODUCE DOCUMENTS 

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury 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 attorney in the Division of Enforcement in the 

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

have personal knowledge of the facts set forth herein. 

2. Attachment A: 1 hereto is a true and correct copy of Complaint Counsel's First Set 

of Requests for Production of Documents, dated November 27,2013. 

3. Attachment A:2 hereto is a true and correct copy ofECM Biofilms, Inc. 

("ECM")'s Responses to Complaint Counsel's First Set ofRequests for Production of 

Documents. 

4. Attachment A:3 hereto is a true and correct copy of an email string among 

Thomas Nealis, Monica [name redacted by ECM], Tom [name redacted by ECM], Dave [name 

redacted by ECM], and Ramani Narayan, dated August 31,2010 (bottom email) through 

September 8, 2010 (top email), that ECM produced to FTC Staff during the pre-complaint 

investigation and Bates-stamped ECM-FTC-000326- ECM-FTC-000330. ECM redacted 

information and has not provided Complaint Counsel with an unredacted version. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct. 

Executed this 3151 day of January 2014 in Washington, DC. 

/l 

Z__(~ ~~~/(_ ___ . Elisa Jifi;on 

Complaint Counsel 
Complaint Counsel 

Exhibit A 

Attachment 1 

CCX-A:l 
PUBLIC DOCUMENT 

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 

COMPLAINT COUNSEL'S FIRST SET OF 

REQUESTS FOR PRODUCTION OF DOUMENTS 

Pursuant to Rule 3.37 of the Federal Trade Commission's Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel hereby request that ECM Biofilms, Inc. ("ECM") 

respond to these Requests within the time prescribed by the Federal Trade Commission's Rules 

of Practice, and produce the following documents and/or tangible things for inspection and 

copying at the Federal Trade Commission, 600 Pennsylvania Avenue, NW, M-8102B, 

Washington, DC 20580, or at such time and place as may be agreed upon by all counsel. 

INSTRUCTIONS 

1. These instructions and definitions should be construed to require responses based 

upon the information available to ECM as well as your attorneys, representatives, investigators, 

and others acting on your behalf. 

2. If you are unable to produce a document or property requested, state in writing 

why you cannot produce the document or the property and, if your inability to produce the 

document or the property is because it is not in your possession or the possession of a person 

from whom you could obtain it, state the name, address, and telephone number of any person 

you believe may have the odginu.l or u cupy uf uny such docurm:nl or properly. 

CCX-A:1 at 1 
PUBLIC DOCUMENT 

3. If you object to a portion or an aspect of any Request, state the grounds of your 

objection with specificity and respond to the remainder of the Request. 

4. If, in answering these Requests, you encounter any ambiguities when construing a 

request, instruction, or definition, your response shall set for the matter deemed ambiguous and 

the construction used in responding. 

5. Where a claim of privilege is asserted in responding or objecting to any discovery 

requested in these Requests and information is not provide on the basis of such assertion, you 

shall, in your response or objection, identify the nature ofthe privilege (including work product) 

which is being claimed. When any privilege is claimed, you shall indicate, as to the information 

requested, whether (a) any documents exist, or (b) any communications took place, and (c) also 

provide the following information for each such document in a "privileged documents log" or 

similar format: 

a. the type of document; 

b. the general subject matter of the document; 

c. the date of the document; 

d. the author(s) ofthe document; 

e. the addressee(s) and any other recipient(s) of the document; and 

f. the custodian of the document, where applicable. 

6. If the requested documents are maintained in a file, the file folder is included in 

the request for production of those documents. 

7. These Requests for Production seek documents not already produced by you 

pursuant to the FTC's letter requests. To the extent responsive documents have already been 

produced by you, you should so indicate and include the Bates Number identifying the 

CCX-A:1 at 2 
PUBLIC DOCUMENT 

documents responsive to that Request. If the document previously produced by you was wholly 

or partially redacted, please provide an unredacted copy, or the basis for claiming privilege or 

other protection as described in Instruction No.5. If the document includes charts or graphs, 

provide color copies of such documents. 

8. Every Request for Production herein shall be deemed a continuing Request for 

Production, and Respondent is to supplement its answers promptly if and when you obtain 

responsive documents which add to or are in any way inconsistent with Respondent's initial 

production. 

DEFINITIONS 

Notwithstanding any definition below, each word, term, or phrase used in these Requests 

is intended to have the broadest meaning permitted under the Federal Trade Commission's Rules 

of Practice. 

1. "All" means and includes "any and all." 

2. "Advertisement" means any written or verbal statement, illustration, or depiction 

that is designed to effect a sale or create interest in the purchasing of goods or services, whether 

it appears on the Internet, in email, on packaging, in a brochure, newspaper, magazine, pamphlet, 

leat1et, webinar, circular, mailer, book insert, free standing insert, letter, catalog, poster, chart, 

billboard, point of purchase material (including, but not limited to, a display or an item worn by 

salespeople), fact sheet, film, slide, radio, broadcast or cable television, audio program 

transmitted over a telephone system, program-length commerc.ial, or in any other medium. 

3. "And" and "or" shall be construed either disjunctively or conjunctively as 

necessary to bring within the scope of the request any information that might otherwise be 

construed to be outside its scope. 

CCX-A:1 at 3 
PUBLIC DOCUMENT 

4. "Any" means and includes "any and all." 

5. "Document" or "documents" are synonymous in meaning and equal in scope to 

the usage ofthe terms as defined by 16 C.P.R. 3.34(b), and includes, without limitation, any 

written material, whether typed, handwritten, printed or otherwise, and whether in draft or final 

form, of any kind or nature, or any photograph, photostat, microfilm or other reproduction 

thereof, including, without limitation, each note, memorandum, letter, release, article, report, 

prospectus, memorandum of any telephone or in-person conversation, any financial statement, 

analysis, drawing, graph, chart, account, book, notebook, draft, summary, diary, transcript, 

computer database, computer printout, or other computer-generated matter, contract or order, 

laboratory report, patent, trademark or copyright, and other data compilations from which 

information can be obtained. Electronic mail is included within the definition. A draft or nonidentical copy is a separate document. 

6. "ECM" shall mean ECM Biofilms, Inc., including without limitation, its agents, 

employees, officers, or anyone else acting on its behalf. 

7. "ECM Additive" means the plastic additive manufactured by ECM, including but 

not limited to "Masterhatch Pellets." 

8.. "ECM Plastics" means plastics that contain ECM Additives. 

9. "Regarding" means and includes affecting, concerning, constituting, dealing 

with, describing, embodying, evidencing, identifying, involving, providing a basis for, reflecting, 

relating to, respecting, stating, or in any manner whatsoever pertaining to that subject. 

REQUESTS 

Reyut~sll 

Provide all documents regarding the efficacy of the ECM Additive in initiating, causing, 

enabling, promoting, or enhancing the biodegradation of plastics containing the ECM Additive. 

CCX-A:1 at4 
PUBLIC DOCUMENT 

Request 2 

Provide all documents regarding whether or how to market ECM Additives as capable of 

initiating, promoting, causing, enhancing, or enabling the biodegradation of plastic. 

Request 3 

Provide all documents regarding the duration of time for complete biodegradation of a 

plastic product containing the ECM Additive. 

Request 4 

Provide all documents regarding whether and how plastics containing ECM Additives 

will biodegrade in different disposal conditions. 

Request 5 

Provide all documents regarding ASTM D5511 or ASTM D5526. 

Request 6 

Provide all documents regarding any express or implied claims that ECM Additives 

initiate, cause, enable, promote, or enhance the biodegradation of plastics containing the ECM 

Additive, and specifically including the following representations: 

a. ECM Plastics will completely break down and decompose into elements found in 

nature within a reasonably short period of time after customary disposal; 

b. ECM Plastics will completely break down and decompose into elements found in 

nature within a reasonably short period of time in a landfill; 

c. ECM Plastics will completely break down and decompose into elements found in 

nature within a nine months to tive years in a landfill; 

d. ECM Plastics will completely break down and decompose into elements found in 

nalun~ wilhin one year in a landtill; and 

CCX-A:1 at 5 
Request 7 

PUBLIC DOCUMENT 

e. ECM Plastics have been shown to perform as stated in (a) through (d) under 

various scientific tests including, but not limited to, ASTM D5511. 

Provide all documents that tend to call into question or disprove any express or implied 

claims that ECM Additives initiate, cause, enable, promote, or enhance the biodegradation of 

plastics containing the ECM Additive. 

Request 8 

Provide all documents regarding any tests conducted on ECM Additives or plastics 

containing ECM Additives purporting to show biodegradability of ECM Additives or plastics 

containing ECM Additives. 

·Request 9 

Provide copies of each different ECM advertisement (including those disseminated to or 

by ECM distributors) that represents, expressly or by implication, that ECM Additives initiate, 

cause, enable, promote, or enhance biodegradation of plastic. 

Request 10 

Provide copies of any materials relating to any ECM Additive made available to any 

ECM Additive distributor or customer, including, but not limited to: packaging, clipart, seals, 

logos, other marketing materials, instructions or suggestions regarding making marketing claims, 

or instructions for the use or marketing of the ECM Additive. 

Request 11 

Provide all documents, whether prepared by or for ECM or any other entity, including 

any advertising agency, regarding consumer perception, comprehension, or recall (including, but 

CCX-A:1 at 6 
PUBLIC DOCUMENT 

not limited to, copy tests, marketing or consumer surveys and reports, penetration tests, recall 

tests, audience reaction tests, and communication tests) of: 

a. any advertisement, whether disseminated or not, that represents, expressly or by 

implication, that ECM Additives initiate, promote, or enhance biodegradation of 

plastic; and/or 

b. biodegradability in general. 

Request 12 

Provide all documents that support or call into question your contention that your 

customers or distributors are sophisticated purchasers. 

Request 13 

Provide all communications with customers, distributors, potential customers, or potential 

distributors regarding ECM Additives. 

Request 14 

Provide all documents regarding your strategy for selling the ECM Additive to customers 

or distributors, including any documents used for verbal sales communications or in preparation 

for verbal sales communications. 

Dated: November 27,2013 Respectfully submitted, 

Is/ Katherine Johnson 

Katherine Johnson (202) 326-2185 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mailstop M-8102D 

Washington, DC 20580 

CCX-A:1 at 7 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on November 27, 2013, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel's First Set of Requests for Production of Documents 

to be served as follows: 

One electronic copy to Couns.el 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 adjudicator. 

Is/ Katherine Johnson 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 

CCX-A:1 at8 
Complaint Counsel 

Exhibit A 

Attachment 2 

CCX-A:2 
PUBLIC DOCUMENT 

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 

RESPONDENT'S RESPONSES AND OBJECTIONS TO 

COMPLAINT COUNSEL'S FIRST SET OF REQUESTS FOR PRODUCTION OF 

DOCUMENTS 

Pursuant to the Federal Trade Commission's Rules of Practice ("Rules"), 16 

C.F.R. 3.37, Respondent ECM BioFilms, Inc. ("ECM") submits its Responses and 

Objections to Complaint Counsel's First Set of Requests for Production of Documents 

("Requests"). 

ECM objects generally to the proposed breadth and scope of Complaint Counsel's 

Requests. They are overbroad and overly burdensome in that they seek materials and 

information that are cumulative, redundant, and irrelevant. Further, they seek 

information at issue in ECM's Motion for Protective Order, which is currently before the 

ALJ. ECM maintains a small workforce and does not have the resources to discover, 

review, and categorize such massive volumes of information within the response time 

requested. Notwithstanding, ECM recognizes the need for disclosure on topics under the 

Rules and endeavors in good faith to comply. To that end, ECM discloses Attachment A 

with this Response. 

1 

CCX-A:2 at 1 
PUBLIC DOCUMENT 

ECM has consistently explained that its sales are generally made through personal 

communication. Attachment A contains summaries of interactions between ECM and 

prospective customers with which ECM has not entered a confidentiality agreement from 

January 1, 2006 -December 31, 2011. Attachment A includes 8,540 separate notes. 

There are approximately 142, 078 other such entries total in ECM's records. Compiling 

the entries in Attachment A and reviewing them consumed significant employee time at 

the sacrifice of work for ECM. Attachment A is responsive to nearly all areas of 

Complaint Counsel's Request. ECM continues to search its records for additional 

responsive data and will provide it under reasonable circumstances soon after it is 

discovered. ECM proposes that Complaint Counsel review Attachment A, ascertain 

which individual records it finds relevant and about which they desire further information 

and/or documentation. Complaint Counsel can then describe precisely those records 

about which they seek more information. ECM will then proceed to discover and 

disclose the responsive documents and information to Complaint Counsel. 

GENERAL OBJECTIONS 

1. ECM objects to Complaint Counsel's Requests to the extent that they call 

for information, materials, and documents protected from disclosure pursuant to sections 

3.3l(c)(2)-(4) ofthe Rules. 

2. ECM objects to Complaint Counsel's Requests to the extent that they call 

for Information, materials, and/or documents protected from disclosure by the attorneyclient privilege, the work product doctrine, or any other upplieabh; privilege. 

3. ECM o~jects to the Instructions and Definitions to the extent they purport 

to impose greater obligations on ECM than those imposed by the Rules, induding,. but 

2 

CCX-A:2 at2 
PUBLIC DOCUMENT 

not limited to Rule 3.31 and/or Rule 3.37. ECM will provide answers and responses 

consistent with the Rules when the Instructions and Definitions deviate from the Rules. 

4. ECM objects to Complaint Counsel's Requests to the extent they call for 

disclosure of its trade secrets and/or confidential and proprietary commercial and 

financial information. ECM will provide responses containing its confidential and 

proprietary information subject to the terms of the Protective Order Governing Discovery 

Material issued by Judge Chappell on October 22, 2013. 

5. ECM objects to Complaint Counsel's Requests to the extent they are 

overly broad, vague, ambiguous, unduly burdensome, oppressive, and are not reasonably 

calculated to lead to the discovery of admissible evidence. 

6. ECM objects to Complaint Counsel's Requests to the extent that they call 

for information previously provided to Complaint Counsel or information that may be 

less onerously obtained through other means. 

7. ECM objects to Complaint Counsel's Requests to the extent they are not 

relevant to the pending proceeding against ECM. 

8. ECM reserves all of its evidentiary objections or other objections to the 

introduction or use of any response at any hearing in this action and does not, by any 

response to any Request, waive any objections to that Request, stated or unstated. 

9. ECM does not, by its response to any Request, admit to the authenticity or 

validity of any document. 

3 

CCX-A:2 at3 
PUBLIC DOCUMENT 

10. ECM objects to Complaint Counsel's Requests on the ground that ECM's 

discovery and analysis are ongoing, and ECM reserves the right to assert additional 

objections, as appropriate, and to amend or supplement these objections and responses as 

appropriate. 

11. ECM's objections and responses are based on its understanding or 

interpretation of Complaint Counsel's Requests and the language used therein. To the 

extent Complaint Counsel challenges those interpretations, or to the extent ECM derives 

a different understanding or interpretation of the language used, ECM reserves the right 

to supplement any of these objections or responses accordingly. 

12. ECM objects to ComplaintCounsel's Requests to the extent that such 

inquiries seek production of information, materials, and documents precluded from 

disclosure under Rule 3.31A(e), including information derived from consulting experts. 

Similarly, ECM objects to the Requests to the extent they seek premature disclosure of 

expert discovery. Consistent with Rules 3.31 and 3.31A, and the standing Protective 

Order in this case, ECM will provide such information at an appropriate time. 

13. ECM objects to the definition of the term "plastic" to the extent that 

Complaint Counsel seeks to limit the universe of scientific facts, products, 'and polymers, 

in any way that narrows the generally accepted scientific definition or understanding of 

the term. 

14. ECM objects to these document requests to the extent they are qualified 

with words such as "all" or other similar expansive language, because such language 

causes the requests to be overly broad and global, vague and ambiguous, and unduly 

burdensome. 

4 

CCX-A:2 at4 
PUBLIC DOCUMENT 

15. ECM objects to these Requests due to their use of the inherently 

ambiguous phrases "within a reasonably short period of time after customary disposal" 

and "within a reasonably short period of time within a landfill" which render the requests 

including the phrases incomprehensible. ECM objects to these Requests due to their use 

of the term "biodegradable" and other similar and/or related terms. Such terms are vague 

and ambiguous. This includes, but is not limited to, the fictive notion that consumers 

interpret the term "biodegradable" to mean that a product must completely break down 

within a one-year period. 

The foregoing general objections shall apply to each of the following Requests 

whether or not restated in the response to any particular response. 

SPECIFIC OBJECTIONS AND RESPONSES 

REQUEST NO. 1 

Provide all documents regarding the efficacy of the ECM Additive in initiating, causing, 

enabling, promoting, or enhancing the biodegradation of plastics containing the ECM 

Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM fmther objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-00001 5 

• ECM-FTC-000016 

• F.C:M-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

5 

CCX-A:2 at 5 
PUBLIC DOCUMENT 

• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject of ECM' s 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 2 

Provide all documents regarding whether or how to market ECM Additives as capable of 

initiating, promoting, causing, enhancing, or enabling the biodegradation of plastic. 

6 

CCX-A:2 at6 
PUBLIC DOCUMENT 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000059 

• ECM-FTC-000022- ECM-FTC-00006 

• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231 - ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000323- ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000493- ECM-FTC-000496 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

7 

CCX-A:2 at 7 
PUBLIC DOCUMENT 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 3 

Provide all documents regarding the duration of time for complete biodegradation of a 

plastic product containing the ECM Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-000017 

• ECM-FTC-000022- RCM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081 - ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

8 

CCX-A:2 at 8 
PUBLIC DOCUMENT 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339- ECM-FTC-000351 

• ECM-FTC-000390- ECM-FTC-00040 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497 - ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are th~ subject of ECM' s 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 4 

Provide all documents regarding whether and how plastics containing ECM Additives 

will biodegrade in different disposal conditions. 

9 

CCX-A:2 at 9 
PUBLIC DOCUMENT 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339 - ECM-FTC-000351 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402 - ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488 - ECM-FTC-000490 

• ECM-FTC-000492 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

10 

CCX-A:2 at 10 
PUBLIC DOCUMENT 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 5 

Provide all documents regarding ASTM D5511 or ASTM D5526. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000017 

• ECM-FTC-000058- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231 - ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000323- ECM-FTC-000325 

• ECM-FTC-000326- ECM-FTC-000331 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000483 

• ECM-FTC-000487 

• ECM-FTC-000497- ECM-FTC-000509 

11 

CCX-A:2 at 11 
PUBLIC DOCUMENT 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. 

REQUEST NO.6 

Provide all documents regarding any express or implied claims that ECM Additives 

initiate, cause, enable, promote, or enhance the biodegradation of plastics containing the 

ECM Additive, and specifically including the following representations: 

a. ECM Plastics will completely break down and decompose into elements 

found in nature within a reasonably short period of time after customary 

disposal. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because the phrase "within a reasonably short period of time after customary 

disposal" is so ambiguous as to be incomprehensible; it therefore renders the request 

incompetent. Subject to those foregoing general and specific objections, ECM responds 

as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339 - ECM-FTC-000351 

12 

CCX-A:2 at 12 
PUBLIC DOCUMENT 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject of ECM' s 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

b. ECM Plastics will completely break down and decompose into elements 

found in nature within a reasonably short period of time in landfill. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because the phrase "within a reasonably short period of time in landfill" is 

13 

CCX-A:2 at 13 
PUBLIC DOCUMENT 

so ambiguous as to be incomprehensible; it therefore renders the request incompetent. 

Subject to those foregoing general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339 - ECM-FTC-000351 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402 - ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

• ECM-FTC-000550 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

14 

CCX-A:2 at 14 
PUBLIC DOCUMENT 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

c. ECM Plastics will completely break down and decompose into elements 

found in nature within nine months to five years in a landfill. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-0000 17 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000332 - ECM-FTC-000334 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM -FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

• ECM-FTC-000510- ECM-FTC-000516 

15 

CCX-A:2 at 15 
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ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

d. ECM Plastics will completely break down and decompose into elements 

found in nature within one year in a landfill. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged documents responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject of ECM' s 

Motion for a Protective Order, filt::d on Deeember 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

16 

CCX-A:2 at 16 
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e. ECM Plastics have been shown to perform as stated in (a) through (d) under 

various scientific tests including, but not limited to, ASTM D5511. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-000058- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241. 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000483 

• ECM-FTC-000486 

• ECM-FTC-000497- ECM-FTC-000509 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Reqw:~st ~t ~ time mutu~lly convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject of ECM' s 

Motion for a Protective Order, filed on December 13, 2013, RCM objects to the 

17 

CCX-A:2 at 17 
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disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.7 

Provide all documents that tend to call into question or disprove any express or implied 

claims that ECM Additives initiate, cause, enable, promote, or enhance the 

biodegradation of plastics containing the ECM Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. There are no documents that 

"call into question or disprove any express or implied claims" referenced in this request. 

ECM has provided responsive documents, and such documents speak for 

themselves concerning their nature or content. ECM will provide additional responsive 

documents at a time and place mutually convenient to the parties, and consistent with the 

ALI's ruling on ECM's pending motion for a protective order. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding On.l~r. 

18 

CCX-A:2 at 18 
PUBLIC DOCUMENT 

REQUEST NO. 8 

Provide all documents regarding any tests conducted on ECM Additives or plastics 

containing ECM Additives purporting to show biodegradability of ECM Additives or 

plastics containing ECM Additives. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000231- ECM-FTC-000241 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000497- ECM-FTC-000509 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that arc the subject ofECM's 

19 

CCX-A:2 at 19 
PUBLIC DOCUMENT 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO.9 

Provide all copies of each different ECM advertisement (including those disseminated to 

or by ECM distributors) that represents, expressly or by implication, that ECM Additives 

initiate, cause, enable, promote, or enhance biodegradation of plastic. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM objects to the request for "advertisements" as that term calls 

for a legal conclusion the sufficiency of which is in controversy. ECM further objects to 

the extent that such Request would impose a burden and expense that substantially 

outweighs any benefit. ECM objects to the extent that such request implies that ECM 

possesses or exerts any degree of control over such advertisements displayed, produced, 

or endorsed by third-party distributors. ECM objects to this Request because it is vague, 

ambiguous, and overbroad. Subject to those foregoing general and specific objections, 

ECM responds as follows: ECM has provided responsive documents, and such 

documents speak for themselves concerning their nature or content. ECM will provide 

additional responsive documents at a time and place mutually convenient to the parties, 

and consistent with a final and binding Order on ECM's pending motion for a protective 

order. 

REQUEST NO. 10 

Provide copies of any materials relating to any ECM Additive made available to any 

ECM Additive distributor or customer, including, but not limited to, packaging, clipart, 

20 

CCX-A:2 at 20 
PUBLIC DOCUMENT 

seals, logos, other marketing materials, instructions or suggestions regarding making 

marketing claims, or instructions for the use or marketing of the ECM Additive. 

RESPONSE: ECM hereby incorporates by reference each General Objection as if 

set forth here in full. ECM further objects to the extent that such Request would impose a 

burden and expense that substantially outweighs any benefit. ECM objects to this 

Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000001- ECM-FTC-000012 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000021 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000062- ECM-FTC-000068 

• ECM-FTC-000069- ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000243 

• ECM-FTC-000244- ECM-FTC-000322 

• ECM-FTC-000385 - ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

21 

CCX-A:2 at 21 
PUBLIC DOCUMENT 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13, 2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 11 

Provide all documents, whether prepared by or for ECM or any other entity, including 

any advertising agency, regarding consumer perception, comprehension, or recall 

(including, but not limited to, copy tests, marketing or consumer surveys and reports, 

penetration tests, recall tests, audience reaction tests, and communication tests) of: 

a. Any advertisement, whether disseminated or not, that represents, expressly or 

by implication, that ECM Additives initiate, promote, or enhance 

biodegradation of plastic; and/or 

b. Biodegradability in general. 

RESPONSE: Discovery is ongoing; ECM will produce any additional relevant, 

responsive, non-privileged document responsive to this Request at a time mutually 

convenient to the parties if additional documents are discovered. To the extent ECM 

discovers the existence of relevant documents responsive to this Request that are the 

subject ofECM's Motion for a Protective Order, filed on December 13, 2013, ECM 

objects to the disclosure of such documents. ECM will not disclose such documents 

unless and until required by a final and binding Order. 

22 

CCX-A:2 at 22 
PUBLIC DOCUMENT 

ECM objects to such Request to the extent that it seeks production of information, 

materials, and documents precluded from disclosure under Rule 3.31A(e), including 

information derived from consulting experts. Similarly, ECM objects to the Requests to 

the extent they seek premature disclosure of expert discovery. Consistent with Rules 

3.31 and 3.31A, and thestanding Protective Order in this case, ECM will provide such 

information at an appropriate time. 

REQUEST NO. 12 

Provide all documents that support or call into question your contention that your 

customers or distributors are sophisticated purchasers. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-000017 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000062- ECM-FTC-000068 

• ECM-FTC-000069 - ECM-FTC-000080 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM-FTC-000243 

• ECM-FTC-000244 - ECM-FTC-000322 

• ECM-FTC-000323 - ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000332 - ECM-FTC-000338 

• ECM-FTC-000339 - ECM-FTC-000351 

• ECM-FTC-000352 - ECM-FTC-000355 

• ECM-FTC-000356- ECM-FTC-000361 

23 

CCX-A:2 at 23 
PUBLIC DOCUMENT 

• ECM-FTC-000363- ECM-FTC-000380 

• ECM-FTC-000385- ECM-FTC-000389 

• ECM-FTC-000390- ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

• ECM-FTC-000493- ECM-FTC-000496 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 13 

Provide all communications with customers, distributors, potential customers, or potential 

distributors regarding ECM Additives. 

RRSPONSR: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM objects to disclosure of any such documents that would fall 

outside the limitations that ECM requested in its Motion for a Protective Order, filed on 

24 

CCX-A:2 at 24 
PUBLIC DOCUMENT 

December 13, 2013. ECM further objects to the Request because it is overly 

burdensome, and would impose an expense that substantially outweighs any benefit. 

ECM objects to the extent that such Request implies that ECM possesses or exerts any 

degree of control over such customers, distributors, potential customers, or potential 

distributors. ECM objects to this Request because it is vague, ambiguous, and overbroad. 

Subject to those foregoing general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-000016 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000021 

• ECM-FTC-000081- ECM-FTC-000088 

• ECM -FTC-000243 

• ECM-FTC-000323- ECM-FTC-000325 

• ECM-FTC-000326 - ECM-FTC-000331 

• ECM-FTC-000332- ECM-FTC-000338 

• ECM-FTC-000339 - ECM-FTC-000351 

• ECM-FTC-000352- ECM-FTC-000355 

• ECM-FTC-000356- ECM-FTC-000361 

• ECM-FTC-000363 - ECM-FTC-000380 

• ECM-FTC-000385- ECM-FTC-000389 

• ECM-FTC-000481- ECM-FTC-000482 

• ECM-FTC-000483 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-0000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000493- ECM-FTC-000496 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course of ECM' s business. 

25 

CCX-A:2 at 25 
PUBLIC DOCUMENT 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

REQUEST NO. 14 

Provide all documents regarding your strategy for selling the ECM Additive to customers 

or distributors, including any documents used for verbal sales communications or in 

preparation for verbal sales communications. 

RESPONSE: ECM hereby incorporates by reference each General Objection as 

if set forth here in full. ECM further objects to the extent that such Request would 

impose a burden and expense that substantially outweighs any benefit. ECM objects to 

this Request because it is vague, ambiguous, and overbroad. Subject to those foregoing 

general and specific objections, ECM responds as follows. 

ECM has previously provided the following documents: 

• ECM-FTC-000015 

• ECM-FTC-0000 16 

• ECM-FTC-000017 

• ECM-FTC-000018- ECM-FTC-000021 

• ECM-FTC-000022- ECM-FTC-000061 

• ECM-FTC-000062- ECM-FTC-000068 

• ECM-FTC-000106- ECM-FTC-000230 

• ECM-FTC-000244 - ECM-FTC-000322 

• ECM-FTC-000390 • ECM-FTC-000401 

• ECM-FTC-000402- ECM-FTC-000480 

• · ECM-Fl'C-0004lH - ECM-Fl'C-000482 

• ECM-FTC-000483 

26 

CCX-A:2 at 26 
PUBLIC DOCUMENT 

• ECM-FTC-000484- ECM-FTC-000485 

• ECM-FTC-000486 

• ECM-FTC-000487 

• ECM-FTC-000488- ECM-FTC-000490 

• ECM-FTC-000492 

ECM has also discovered and is providing documents contained in Attachment A 

that are responsive to this request. Such records are provided as they are kept in the usual 

course ofECM's business. 

Discovery is ongoing; ECM will produce any additional relevant, responsive, 

non-privileged document responsive to this Request at a time mutually convenient to the 

parties if additional documents are discovered. To the extent ECM discovers the 

existence of relevant documents responsive to this Request that are the subject ofECM's 

Motion for a Protective Order, filed on December 13,2013, ECM objects to the 

disclosure of such documents. ECM will not disclose such documents unless and until 

required by a final and binding Order. 

DATED this 27th day ofDecember 2013 

27 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Emard 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

Email: jemord@emord.com 

CCX-A:2 at 27 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on December 27, 2013, I caused a true and correct copy of 

the paper original of the foregoing RESPONDENT'S RESPONSES AND 

OBJECTIONS TO COMPLAINT COUNSEL'S FIRST REQUEST FOR 

PRODUCTION OF DOCUMENTS to be served as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: kjohnson3Cmftc.gov 

Jonathan Cohen 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: jcohen2@ftc.gov 

Elisa Jillson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

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. 

28 

Is/ Jonathan W Emard 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

CCX-A:2 at 28 
Complaint Counsel 

Exhibit A 

Attachment 3 

CCX-A:3 
CONFIDENTIAL 

Thomas Nealis 

From: -Tom······ 

Sent: Wednesday, September 08, 2010 10:16 AM 

To: Thomas Nealis 

Subject: Our Conversation - ASTM Standards 

Tom, I am sending the emails below as an "FYI" so you have the latest information from us. Monica, our 

Salesperson for Sam's and P&G, has been talking with ASTM directly. I am not sure if you will learn much 

from the email below but I want you to see it anyway. , 

I think we are arnving at a point where we are going to have to do some physical testing ot our products 

with bio case to put some issues to rest. Do you agree with my conclusion? Or, can we continue to march 

on as we are now? 

2 

CCX-A:3 at 1 

CONFIDENTIAL ECM-FTC-000326 
CONFIDENTIAL 

Assuming we have to do some testing, can you tell me what that test(s) should be; for how long; and how 

much (ballpark) estimate it would cost to complete it? 

We will discuss these questions too. I have conference call now but will call you later in the day. 

Tom 

From: Monica 

Sent: Tuesday, September 07, 2010 4:48 PM 

To:- Dave; Tom 

Subject: RE: Our Conversation - ASTM Standards 

Dave: I believe is very good that ASTM is talking to us and has an interest in helping us, a good sign. I 

agree it is a lot to digest but if we are going to make claims that our packs are biodegradable I strongly 

suggest we try to get some of what they are asking for, done. Some of these requirements should come 

from your supplier, but I don't think their responsibility is to get involved in testing their additive in our 

cases, that is something that needs to be done by us and should be documented. 

Let me know if you need anything else from me. 

The rest will come tomorrow. 

Best Regards 

Territory Manager- California 

Sr. Manager Nalional Accounls 

a-Group Company 

PH:-~~~-

Fax:·B·I2 

3 

CCX-A:3 at2 

CONFIDENTIAL ECM-FTC-000327 
CONFIDENTIAL 

From:-Dave 

Sent: Tuesday, September 07, 2010 4:39 PM 

To: Monica; Tom 

Subject: RE: Our Conversation - ASTM Standards 

WOW. There is a lot here to digest. I strongly suggest we get a conference call with our supplier to get his input in all of 

this. Basically we are the middle man right now between them and the customer. THEY need to help us help sell this stuff. 

From: Monica 

Sent: Tuesday, September 07, 2010 3:35PM 

To:-Tom; Dave 

Subject:FW: Our Conversation- ASTM Standards 

Tom -Dave: My conversations with AST continues as I am trying to see what we need to do to get their 

backing so we can get back in to conversations with the "big guys". 

Below is an e-mail I received from my contact and the person in charge of ASTM Standards for Plastic. 

Please read and let me know if you have any questions or comments. I will be sending you on a separate 

e-maH standards 05511, 05509 and 0638 as he will bee-mailing them to me tomorrow. 

Regards 

Monica~ 

Territory Manager- California 

4 

CCX-A:3 at3 

CONFIDENTIAL CCM-FTC-000320 
Sr. Manager National Accounts 

a-Group Company 

PH: __ _ 

Fax:··-112 

From: Ramani Narayan [mailto:narayan@msu.edu] 

Sent: Tuesday, August 31, 2010 10:37 AM 

To: Monica 

Subject: RE: Our Conversation- ASTM Standards 

CONFIDENTIAL 

Monica: Thanks for the infonnation you have provided me, I also visited your web site and that help me further to 

understand your products and your interest to obtain ASJM support to c1aim biodegradation of your packaging. 

Unfortunately, there are some fundamental misconceptions that needs to be cleared up and in all probability not 

presented to you appropriately. Specifically let's address the two ASTM standards D 5511 and D5209. You were 

right in the way you addressed D6400 in relations to your company's products and although it does apply to any plastic 

packaging, we need to look at other aspects of your products biodegradation before getting into anything specific. 

AS 1M D5511 is a "test method". It teaches how to conduct the test under high solids anaerobic digestor conditions 

and how to accurately and correctly report on the rate and extent of biodegradation under these conditions. Since it 

is test methods there is no pass or fail criteria established. So stating that the product "complies" or "meets" the test has 

no meaning. What are the results of the" test". Is it 0% or 20% or 50% or 90% biodegradation as per the reporting 

requirement in the test mt>.thocl ASTM 05511. Tfihe results show 90%+ biodegradation in AS'IM D5511, then a daim 

of complete biodegradability under high solids anaerobic digestor c()nditions is valid and warranted. If the result of the 

"test method" shows only 10-20% biodef:.rradation and it levels offwi1h nothing or very little happening, then a claim of 

"biodegradability" is not accurate awl H.ti~kaui.ug. 

5 

CCX-A:3 at4 

CONFIDENTIAL ECM-FTC-000329 
CONFIDENTIAL 

Assuming that your products comply with AS 1M D5511 is inaccurate, unless you also provide the results of the test 

and show 90% + biodegradation. In that context, may I also suggest that you independently have the product tested as 

per ASTM D5511 and check out the results of the test. Many major manufacturers have and are doing their own testing 

and validation and finding that the results show little or no biodegradation in AS1M D5511 or D5526 (accelerated 

landfill conditions). 

I note from your web site that you are a manufacturer of molded plastic parts. So let me give you another analogy from 

that and you can have your testing done and discussed. ASTM D638 is a test method for measuring tensile properties 

of plastics. It is a test method that teaches how to conduct a tensile test, how to prepare test specimens, and how to 

report tensile data. I do not think your company would say that our molded product "complies'' with D638, but would 

state that using D638, our molded product shows the following results of tensile strength, elongation to break modulus 

etc. Based on these results, our product meets the requirements of your application - remember the results of the test 

could give very high tensile strength, or very poor tensile strength. 

Another word of caution, "extrapolation" of data is being used to convince that the product is completely biodegradable 

in anaerobic landfill environment. By stopping the test at I 0% or 20% biodegradation and drawing a straight line 

extrapolation to show that the product will completely biodegrade in 9 months or 5 years is scientifically erroneous and 

misleading, especially if the biodegradation is slowly leveling off and reaching a plateau with no more biodegradation 

happening. Again, your engineering folks would clearly understand this. 

The Standards are not "material or product" specific, it answers the question as to whether microorganisms present in 

the target disposal environment is capable of completely utilizing/assimilating the plastic substrate as food in a 

reasonably defmed time period. Fundamental biology/biochemistry taught in high school and college freshman classes 

teaches how to quantitatively measure the microbial assimilation which forms the basis for not only the ASTM standards 

but EN and ISO standards as well. 

Maybe we can now review the data obtained by you using D5511 and D5209 and answer the question as to what· 

percent biodegradation is obtained and in what time frame. I look forward to discussing this with you further. 

Best wishes 

Ramani Narayan 

ASTM Director of Research. 

University Distinguished Professor 

6 

CCX-A:3 at 5 

CONFIDENTIAL ECM-FTC-000330