Ullmann

ECM BioFilms, Inc., et al. 5/9/2014
EE eeaea==
125 127
1 Q. Why not just weigh it? 1 Q. Right. I just have a few questions, and I
2 A. Well, when you weigh it, there is going to 2 apologize if we have covered this before, but can you
3 be -- you can't always get a sample completely clean 3 explain again your or for the first time your
4 of the stuff that is in there. There is always going 4 educational background?
5 to be bacteria and stuff in the sample, especially if 5 A. Yeah. I'm going to school for accounting.
6 you have a foam piece. Even like if you try to clean 6 I have worked at the lab since I was 16, so that's the
7 any type of sample, it takes a long time to clean and 7 reason why I'm doing what I do there.
8 dry, and you have to redo the process so many times. 8 Q. Would that have been when you were in high
9 Q. So it's just easier to send it out and 9 school you began work?
10 _ have the molecular weight loss analysis done? 10 A, I started working there when I was 16. I
11 A. People -- we don't ever get requests to 11 was doing bottom of the totem pole bottle washing and
12 weigh the sample after. 12 when I was 18 -- I mean, this was all part time. So
13 Q. You're not going to school to become a 13 when I was 18, I started, 18 or 19 I started helping
14 scientist? 14 my grandfather with the biodegradation studies on and
15 A. No. 1S off. So I have been doing all the biodegradation
16 Q. After spending so many years in the lab 16 stuff since then, tike setting up the tests and
17 you decided you would rather do accounting? 17 putting reports together, that kind of stuff.
18 A. Right. Well, I started working when I was 18 Q. At that time when you were working with
19 16 there as a part-time bottle washer, so I have kind 19 your grandfather, would it be fair to say he made all
20 of grown up there. 20 the scientific decisions with respect to the tests and
21 Q. When you're going through the list of all 21 protocols?
22 of the employees, it sounded like there is a lot of 22 A. Yes. He did everything. He wrote up the
23 people who are related; is that right? 23 reports. I would just type everything. He did all
24 A. There is -- well, his dad owns it, so his 24 the calculations.
25 wife and him work there. My cousin works there 25 Q. Did you attend college or higher education
126 128
1 because my grandfather started it. That's really the 1 after high school?
2 only-- yeah, it's a family-run business. 2 A. Yep. I'm currently doing classes.
3 Q. What does — what does Garrett Johnson do? 3 Q. How old are you right now?
4 A. He does -~- I don't even know what you -- I 4 A. I'm 24.
5 think he sets up the schedule for all the sample 5 Q. And how far do you have to go in your
6 pick-ups, drop-offs. I know he does reports. He 6 degree program?
7 doesn't do anything related to actual testing. 7 A. I don't know exactly. I have always been
8 Q. When you say reports, what kind of 8 — onand off with taking classes. I don't know how many
9 reports? 9 exactly more classes I need.
10 A. For like different like -- like maybe he 10 Q. Have you taken any science classes in
IL types reports for like water testing or ... a college, university?
12 Q. But he doesn't do anything with the 12 A. Ihave. I have taken -- I have only
13 biodegradation studies? 13 taking one science class. It was a biology class, I
14 A. No. 14 __ believe, probably back in 2008.
15 Q. Alright. ¥ think I'm done. So I will 15 Q. Now, you testified before that you weren't
16 pass the witness to Mr. Arhangelsky. 16 certain of Alan Johnson's scientific credentials; is
17 CROSS-EXAMINATION BY MR. ARHANGELSKY: 17 that right?
18 Q. Okay, thank you. Ms. Ulimann, let me just 18 A. Right. I don't know exactly everything.
19 =I guess [ haven't explained myself. I'm Peter 19 Hehasadegree. I believe. I didn't study his
20 Arhangelsky. I represent ECM BioFilms. I think 20 curriculum vitae.
21 you've spoken with our offices before. I don't think 21 Q. How long has he been employed or worked
22 Thave spoken to you before; is that right? 22 for Northeast Labs?
23 A. Yeah, I think I talked to one person. 23 A. Avery long time. I couldn't give you a
24 Garrett's done most of the communication back and 24 certain amount of time. He was partners with my
25 forth. 25 grandfather from when he was younger, but I don't know

ECM Opp to Mot to Tak @¢p870-8025 - www. ftrinc.net - (800) 921-5555

Exh. A

32 (Pages 125 to 128)

For The Record, Inc.

Page 7 of 9


knowledge that are relevant to the allegations of the Complaint, Respondent’s affirmative
defenses, or the proposed relief.

13. James Blood, Free-Flow Packaging International, Inc. (“FP”) General
Counsel, as FP’s designee

Mr. Blood will testify regarding FP’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, FP’s purchase of ECM
additive; reasons for this purchase; FP’s understanding of ECM’s claims and substantiation for
those claims; FP’s resources and ability to test and evaluate ECM’s claims and substantiation;
FP’s use and understanding of the ECM Certificate of Biodegradability, the ECM logo, and other
ECM promotional material; FP’s understanding of how its customers used ECM promotional
materials and products made with the ECM additive; any other issues addressed in his
deposition; any documents introduced into evidence by Respondent or Complaint Counsel as to
which he has knowledge; or any other matters as to which he has knowledge that are relevant to
the allegations of the Complaint, Respondent's affirmative detenses, or the proposed relief.

14. Adrian Hong, Island Plastic Bags, Inc. (“Island Plastic Bags”) General
Manager, as Island Plastic Bags’ designee

Mr. Hong will testify regarding Island Plastic Bags’ relationship with ECM and
understanding of ECM’s product, claims, and testing, including, but not limited to, Island Plastic
Bags’ purchase of ECM additive; reasons for this purchase; Island Plastic Bags’ understanding
of ECM’s claims and substantiation for those claims; Island Plastic Bags’ resources and ability to
test and evaluate ECM’s claims and substantiation; Island Plastic Bags’ use and understanding of
the ECM Certificate of Biodegradability, the ECM logo, and other ECM promotional material;
Island Plastic Bags’ understanding of how its customers (and their customers) used ECM.

promotional materials and products made with the ECM additive; any other issues addressed in

ECM Opp to Mot to Take Depo Page 9 of 16

Exh. C


any other matters as to which he has knowledge that are relevant to the allegations of the
Complaint, Respondent’s affirmative defenses, or the proposed relief.
ECM Customers

5. Stephen Joseph, 3M Company (“3M”) Staff Scientist, as 3M’s designee

Mr. Joseph will testify regarding 3M’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, 3M’s purchase of ECM
additive; reasons for this purchase; 3M’s testing of the ECM additive; 3M’s evaluation of ECM’s
claims; 3M’s evaluation of ECM’s substantiation for those claims; 3M’s understanding of
ECM’s claims and substantiation for those claims; 3M’s resources and ability to test and evaluate
ECM’s claims and substantiation; 3M’s use and understanding of the ECM Certificate of
Biodegradability, the ECM logo, and other ECM promotional materials; any other issues
addressed in his deposition; any documents introduced into evidence by Respondent or
Complaint Counsel as to which he has knowledge; or any other matters as to which he has
knowledge that are relevant to the allegations of the Complaint, Respondent’s affirmative
defenses, or the proposed relief.

6. Ramy Samuels, A.N.S. Plastics Corp. (“ANS”) Vice President, ANS’s
designee

Mr. Samuels will testify regarding ANS’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, ANS’s purchase of ECM
additive; reasons for this purchase; ANS’s understanding of ECM’s claims and substantiation for
those claims; ANS’s resources and ability to test and evaluate ECM’s claims and substantiation;
ANS’s use and understanding of the ECM Certificate of Biodegradability, the ECM logo, and
other ECM promotional material; ANS’s understanding of how its customers used ECM

promotional materials and products made with the ECM additive; any other issues addressed in

ECM Opp to Mot to Take Depo Page 5 of 16
Exh. C


Expert Witnesses

25. Steven McCarthy, Ph.D.

Dr. McCarthy is a Professor of Plastics Engineering at the University of Massachusetts
Lowell (the “University”). He teaches graduate level courses in plastics engineering, including
the “Mechanical Behavior of Polymers” and “Polymers and the Environment.” In addition, he is
the Director of the University’s Biodegradable Polymer Research Center, where he orchestrates
research on biodegradable polymers. He is also the Principal Investigator for studies on plastics
engineering and polymer research. Dr. McCarthy has more than three decades of experience
studying both the chemical and mechanical behavior of polymers, including the biodegradability
of polymers used to form conventional, commercial-grade plastics.

Dr. McCarthy will testify, from his perspective as an expert in the fields of plastics
engineering, polymer science, and biodegradable polymers, about whether plastic products
manufactured with the ECM additive: (1) are biodegradable; (2) will completely breakdown and
decompose into elements found in nature in most landfills within 5 years; and (3) will
completely breakdown and decompose into elements found in any disposal environment at an
appreciably faster rate and extent than conventional plastics without the ECM additives.

26. Shane Frederick, Ph.D.

Dr. Frederick is a Professor of Marketing at Yale University. His research focuses on the
area of judgment and decision-making: the study of factors that affect attitudes, preferences and
behavior of consumers. In addition, he has taught courses in consumer behavior, behavioral
economics, and marketing, and he has both studied and published extensively concerning
judgment and decision-making, with a focus on the role of cognitive abilities on preferences,

preference measurement, and cognitive biases.

4

ECM Opp to Mot to Take Depo Page 14 of 16

Exh. C


In the Matter of:

ECM BioFilms, Inc., et al.

May 9, 2014
Alyssa Ullmann

Condensed Transcript with Word Index

For The Record, Inc.
(301) 870-8025 - www. ftrinc.net - (800) 921-5555

ECM Opp to Mot to Take Depo

Exh. A

Page 1 of 9


Respondent’s Exhibit G


32. Rickard J. Locke and/or representative of MacNeill Engineering Company, Inc.

Kerry Timber

Sunstein Kann Murphy & Timber LLP
125 Summer St.

Boston, MA 02110-1618

Tel: (617) 443-9292, ext. 223

Proposed Testimony: We anticipate that this witness will testify regarding their purchase
of ECM Additive, their use of the Certificate of Biodegradability, their use of the ECM logo, and
their understanding of ECM’s claims of biodegradability, and their understanding of ECM’s
claims that it had substantiation for its biodegradable claims.

33. Timothy R. Barber and/or Representative of Environ International Corp.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

34. Timothy R. Barber and/or Representative of ChemRisk

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

35. Richard Tillinger, O.W.S. Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

36. Bruno De Wilde, O.W.S. Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

37. Patrick F. Riley, O.W.S. Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

38. Representative of O.W.S. Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

39. Mike Spilde, University of New Mexico

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

40. Morton Litt, Case Western Reserve University

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

ECM Opp to Mot to Take Depo Page 7 of 11

Exh. D



19. Jean A. Sweigert, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

20. Stacy Adams, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

21. Debra K. Browning, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

22. Kelly A. Dean, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

23.  Anjie Kacperski, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

24. Brenda L. Peters, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this wimess will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

25. Annet A. Retofsky, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

26. All current and former employees of ECM Biofilms, Inc.
Proposed Testimony: We anticipate that these witnesses will testify about ECM’s

products, distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

ECM Opp to Mot to Take Depo Page 5 of 11
Exh. D



CERTIFICATE OF SERVICE

Thereby certify that on January 17, 2014, I caused a true and correct copy of the paper
onginal of the foregoing Complaint Counsel’s Preliminary Witness List to ECM BioFilms, Inc.
to be served as follows:

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord Peter Arhangelsky

Emord & Associates, P.C. Emord & Associates, P.C.

11808 Wolf Run Lane 3210 S. Gilbert Road, Suite 4
Clifton, VA 20124 Chandler, AZ 85286

Email: jemord@emord.com Email: parhangelsky@emord.com
Lou Caputo

Emord & Associates, P.C.
3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286

Email: leaputo@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.

Dated: January 17, 2014

jneJohnson (kjohnson3@ftc.gov)
an Cohen (jcohen2@ftc. gov)
© Blisa 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

ul

ECM Opp to Mot to Take Depo Page 11 of 11

Exh. D



PUBLIC DOCUMENT

UNITED STATES OF AMERICA.
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of
ECM BioFilms, Inc., Docket No. 9358
a corporation, also d/b/a

Enviroplastics International PUBLIC DOCUMENT

eee

PROPOSED] ORDER EXCLUDING ROD ALIRE AS A WITNESS

This matter having come before the Chief Administrative Law Judge on May 12, 2014,
‘upon a Joint Motion for Entry of an Order Excluding Rod Alire as a Witness, it is hereby
ORDERED that:
1. The Joint Motion is GRANTED;
2 Pursuant to the parties’ stipulation, it is hereby ORDERED that Mr. Rod Alire
will not testify at trial, even in rebuttal.

ORDERED:
D. Michael Chappell
Chief Administrative Law Judge

ECM Opp to Mot to Take Depo Page 3 of 4
Exh. E



Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

3! Michelle R. Leicher, ECM Biofilms, Inc.

Counsel for ECM Biofilms, Inc.
Jonathan W. Emord

Emord & Associates, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

6. Kristen A. Marineau, ECM Biofilms, Inc.

Counsel for ECM Biofilms, Inc.
Jonathan W. Emord

Emord & Associates, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

vB Vesna Barnjak, Former Employee of ECM Biofilms, Inc.
Proposed Testimony: We anticipate that this witness will testify about ECM’s products,

distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

8. Elizabeth M. Eberly, Former Employee of ECM Biofilms, Inc.
Proposed Testimony: We anticipate that this witness will testify about ECM’s products,

distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

9. Chessa C. Gottron, Former Employee of ECM Biofilms, Inc.
Proposed Testimony: We anticipate that this witness will testify about ECM’s products,

distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

10. Anne C. Hassoldt-Fenoff, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

3

ECM Opp to Mot to Take Depo Page 3 of 11
Exh. D



ECM Opp to Mot to Take Depo
Exh. B

United States of America

FEDERAL TRADE COMMISSION
Elisa Jillson
Katherine Johnson 600 Pennsylvania Ave. NW, M-8102B
600 Pennsylvania Ave. NW, M-8102B Washington, DC 20580
Washington, DC 20580 (202) 326-3001; ejillson@ftc.gov

(202) 326-2185; kjohnson3@ftc.gov

Jonathan Cohen

600 Pennsylvania Ave. NW, M-8102B
Washington, DC 20580

(202) 326-2551; jcohen2@ftc.gov

April 30, 2014
VIA EMAIL AND FEDERAL EXPRESS

Northeast Laboratories, Inc.
c/o Garrett W. Johnson, Esq.
129 Mill Street

Berlin, CT 06037

Re: In the Matter of ECM BioFilms, Inc, Dit. No. 9358 — Deposition Subpoena

Dear Mr. Johnson:

As you know, the FTC has initiated the above-referenced administrative proceeding
against ECM BioFilms. This letter notifies you that we have subpoenaed the deposition
testimony of a corporate designee (a person at your company who can testify on the company’s
behalf) for Friday, May 9, 2014 at the United States Attorney’s New Haven Office, located at
Connecticut Financial Center, 157 Church Street, Floor 25, New Haven, CT 06510. The
deposition will begin at 9:00 A.M. before an officer authorized to take depositions. See FTC
Rules of Practice, 16 CFR. §§ 3.33(0)(1) & 3.34(a).

Enclosed please find the subpoena, which contains the instructions for where and when
your corporate designee raust appear. The designee must be prepared to testify as to matters
known or reasonably available to Northeast Laboratories, Inc. (“Northeast Labs”) regarding the
topics listed in the attached schedule. See id. § 3.33(c)(1). Your designee has a legal obligation
to review all information known or reasonably available to Northeast Labs regarding these
topics, so that he or she can respond knowledgeably to questions on Northeast Labs’ behalf.

Please call me at (202) 326-2185 if you have any questions.

Page 1 of 8


his deposition; any documents introduced into evidence by Respondent or Complaint Counsel as
to which he has knowledge; or any other matters as to which he has knowledge that are relevant
to the allegations of the Complaint, Respondent’s affirmative defenses, or the proposed relief.

15. Annette Gormly, Kappus Plastic Company, Inc. (“Kappus”) Vice President,
as Kappus’ designee

Ms. Gormly will testify regarding Kappus’ relationship with ECM and understanding of
ECM?’s product, claims, and testing, including, but not limited to, Kappus’ purchase of ECM.
additive; reasons for this purchase; Kappus’ understanding of ECM’s claims and substantiation
for those claims; Kappus’ resources and ability to test and evaluate ECM’s claims and
substantiation; Kappus’ use and understanding of the ECM Certificate of Biodegradability, the
ECM logo, and other ECM promotional material; Kappus’ understanding of how its customers
used ECM promotional materials and products made with the ECM additive; any other issues
addressed in her deposition; any documents introduced into evidence by Respondent or
Complaint Counsel as to which she has knowledge; or any other matters as to which she has
knowledge that are relevant to the allegations of the Complaint, Respondent’s affirmative
defenses, or the proposed relief.

16. James Bean, Quest Plastics, Inc. (“Quest”) President and Chief Executive
Officer, as Quest’s designee

Mr. Bean will testify regarding Quest’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, Quest’s purchase of ECM
additive; reasons for this purchase; Quest’s understanding of ECM’s claims and substantiation
for those claims; Quest’s resources and ability to test and evaluate ECM’s claims and
substantiation; Quest’s use and understanding of the ECM Certificate of Biodegradability, the

ECM logo, and other ECM promotional material; Quest’s understanding of how its customers

10

ECM Opp to Mot to Take Depo Page 10 of 16
Exh. C


July 10 — Stewart (Los Angeles, CA)
July 11 — Sahu (Los Angeles, CA)
July 14 - Barlaz Raleigh, NC)

July 15 ~ Volokh (Atlanta, GA)

Please let us know whether this works. Hopefully, getting this set soon will make the ptocess easier on
everyone.

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 | icohen2@ftc.zov

ECM Opp to Mot to Take Depo Page 7 of 7
Exh. F


PUBLIC DOCUMENT

¢ Down to Earth (Apr. 29, 2014)

e Eagle File Extruders (May 14, 2014)

e Eden Labs (May 19, 2014)

e Elsevier (May 30, 2014)

e Flexible Plastics (May 15, 2014)

e Island Plastic Bags (April 28, 2014)

e Kappus Plastic Company (May 6, 2014)

© Quest Plastics (May 7, 2014)

e 3M Corporation (May 16, 2014)

e ANS Plastic (May 5, 2014)

e FP International (May 1, 2014)

e Timothy Barber, Ph.D. (May 7, 2014)

e Thomas Nealis, ECM Employee (March 5, 2014)

e Alan Poje, former ECM Employee (March 6, 2014)

e Robert Sinclair, ECM President (February 18, 2014)

e Kenneth Sullivan, ECM Officer (February 20, 2014)
Each of the foregoing depositions were noticed and conducted by Complaint Counsel. Also, the
parties will soon have taken eight (8) additional expert depositions.'? The mere cost of those
depositions has been significantly burdensome for ECM. Put simply, enough is enough. Fact

discovery should be rendered final and complete so the parties can work through the remaining

!2 That number may increase by at least one if the court permits Complaint Counsel to
add a new expert without notice. ECM has filed a motion to exclude Dr. Michel, based on
Complaint Counsel’s contumacious failure to abide by the Court’s scheduling order. That
motion remains pending.


Tolaymat, Ph.D.

ECM BioFilms, Inc., et al.

1 EXAMINATION CONDUCTED
2 BY MR. ARHANGELSKY:.......------+-++e+5
3
4 EXHIBITS MARKED
5 (Thereupon, Tolaymat Deposition
6 Exhibit 1, complaint counsel's
7 supplemental expert witness list,
8 was marked for purposes of
9 identification.)
10 (Thereupon, Tolaymat Deposition
11 Exhibit 2, Dr. Tolaymat's curriculum
12 vitae, was marked for purposes of
13 identification.)
14 (Thereupon, Tolaymat Deposition
15 Exhibit 3, 6/24/14 expert report of
16 Dr. Thabet Tolaymat, summary and
17 conclusions, was marked for purposes
18 of identification.).........--.-.5+--
19 (Thereupon, Tolaymat Deposition
20 Exhibit 4A, article titled
21 Performance of North American
22 Bioreactor Landfills. I: Leachate
23 Hydrology and Waste Settlement, was
24 marked for purposes of
25 identification.) ......e bees ee eae

For The Record, Inc.

PAGE
11

13

13

17

84

(301) 870-8025 - www. ftrinc.net - (800) 921-5555

ECM Opp to Mot to Take Depo

Exh. G

6/24/2014

Page 2 of 9


UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of: ))

ECM BioFilms, Inc., ) Docket No. 9358

IA VO B® WH eB

a corporation, also d/b/a )

8 Enviroplastics International.)

9

10

a1 Deposition of

12 THABET M. TOLAYMAT, Ph.D-~

13

14 TRANSCRIPT CONFIDENTIAL

15 PURSUANT TO PROTECTIVE ORDER

16

17 June 24, 2014

18 8:26 a.m.

19

20 Taken at:

21 US Environmental Protection Agency

22 26 Martin Luther King Drive West

23 Cincinnati, Ohio 45268

24

25 Caryl L. Blevins, RPR, CRR, Notary Public
ECM Opp to Mot to Take Depo Page 1 of 9

Exh. G


Tolaymat, Ph.D.

209

ECM BioFilms, Inc., et al. 6/24/2014
1 Q. We were talking about your point that
2 the D5511 study cannot distinguish between what is
3 biodegraded from the additive versus what is
4 biodegraded from the plastic.

5 A. That is correct.

6 Q. This study shows fifty percent

7 biodegradation.

8 A. Okay. So if D5511 is carried out

9 correctly, it will not be able to distinguish

10 between the additive and without additive.
ai Q. Which is why?

12 A. Because it does not -- it can't tell
13 you whether the material, the additive by itself,
14 would decompose and how much gas will be generated
15 from the additive by itself.

16 Q. I think I'm going to ask it again
17 because I'm not sure I've received an answer to
18 the question: What accounts for the extra
19 forty-nine percent -- almost forty-nine percent of
20 biodegradation in this study?
21 MR. DECASTRO: Objection. Asked and
22 answered.
23 THE WITNESS: The way the test was
24 conducted, I believe the process by which the
25 process was conducted, based on my review of the

For The Record, Inc.
(301) 870-8025 - www. ftrinc.net - (800) 921-5555

ECM Opp to Mot to Take Depo

Exh. G

Page 4 of 9


Subject to these reservations of rights, Complaint Counsel’s Final Proposed Witness List

is as follows:

Current and Former ECM Employees

1. Robert Sinclair, ECM President, in his individual capacity and as ECM
designee

Mr. Sinclair will testify about ECM’s advertising and products, including but not limited
to ECM’s distribution and sales channels; financial information; customer base; communications
with prospective customers, customers, former customers, ASTM, testing facilities, scientists
studying the purported biodegradability of plastics, Plastics Environmental Council, and other
parties regarding the ECM additive and purported biodegradability of plastic, ECM’s claims of
biodegradability of plastics treated with the ECM additive; ECM’s substantiation for those
claims; other testing regarding the ECM additive and the alleged biodegradability of plastic;
facts alleged in the Complaint; any other issues addressed in his deposition (in his personal
capacity and as a corporate representative of ECM), any documents introduced into evidence by
Respondent or Complaint Counsel as to which he has knowledge; or any other matters as to
which he has knowledge that are relevant to the allegations of the Complaint, Respondent’s
affirmative defenses, or the proposed relief.

23 Kenneth C. Sullivan, Jr., ECM Chief Financial Officer

Mr. Sullivan will testify about ECM’s advertising and products, including but not limited
to ECM’s distribution and sales channels; financial information; customer base; any other issues
addressed in his deposition; any documents introduced into evidence by Respondent or
Complaint Counsel as to which he has knowledge; or any other matters as to which he has
knowledge that are relevant to the allegations of the Complaint, Respondent's affirmative

defenses, or the proposed relief.

ECM Opp to Mot to Take Depo Page 3 of 16
Exh. C


Ullmann

ECM BioFilms, Inc., et al. 5/9/2014
129 131
1 the exact amount of time. 1 they written?
2 Q. On the reports he lists himself as a 2 A. Edo a lot of conversations through e-mail
3 laboratory director. Can you explain to me what that 3 when a customer calls, too, and -- well, I mean, we do
4 position means to you? What's his job qualifications, 4 get a lot of inquiries through the Web site, so we
5 description? 5} usually e-mail back and forth. I do talk on the phone
6 A. He oversees everything. He would be the 6 to people, but a lot of everything is -- most
7 person that you would go to for any questions or iti everything is done through e-mail.
8 problems. He's the owner of the entire business so he 8 Q. Have you produced most of those e-mails to
9 directs -- he's the highest person up there. 9 either ECM or complaint counsel in response to the
10 Q. So is he now the person that makes 10 subpoena?
ll decisions concerning the scientific issues related to il A. I don't think I have e-mailed anyone in
12 testing protocols? 12 response to -- the ones -- I mean the, e-mails that
13 A. Correct. 13 are from me that they sent, those are from me, but I
14 Q. Would you call him your boss? 14 haven't been the one to e-mail them to whoever got
15 A. Yes. 15 like -- Garrett has been the one who has been talking
16 Q. When you received complaint counsel's 16 to everyone,
17 subpoena to testify, who did you talk to about who 7 Q. Who prepared your response to ECM's
18 would come today to testify on behalf of Northeast 18 subpoena for documents?
19 Labs? 19 A. Garrett Johnson.
20 A. Like who did I talk to that was -- the 20 Q. Do you have any awareness of what he
21 only person that I have talked to about this whole 21 looked for in preparing that response?
22 thing has been Garrett and Alan. 22 A. He looked for everything that had ECM in
23 Q. Did you talk with Garrett and Alan about 23 the documentation, in the e-mails. It was a
24 the best person to come and answer questions 24 certificate with ECM.
25 concerning the deposition topics and complaint 25 Q. You mentioned you only keep certain
130 132
1 counsel's subpoena? 1 records past a year. Would you happen to have
2 A. Yeah. They decided I was, because I 2 electronic records beyond a year?
3 handle all of the clients, and I put their reports 3 A. We have everything electronically from the
4 together, and I have been doing the biodegradation 4 beginning of whenever the computers, they have been
5 stuff the longest so ... 5 using computers.
6 Q. Would you say that or let me ask -- strike 6 Q. Would that include the Excel workbooks you
7 that. Who is the most knowledgeable person in 7 testified about earlier?
8 Northeast Labs to answer questions concerning the 8 A. Yeah. We have lots and lots of Excel
9 scientific issues and the tests and protocols? 9 sheets with all the gas readings on it.
10 A. That would be -- scientific issues would 10 Q. And those Excel -- so you would have the
a1 be Alan Johnson. u workbooks for the tests that we have discussed here
12 Q. When you've -- we discussed before these 12 today?
13. _ studies that ran beyond 30 days. Who makes the 13 A. We should, unless my grandfather -- when
14 decision whether the test will ultimately run beyond 4 he did all of this, I believe he did everything on
15 30 or 45 days? 15 paper, because, I mean, he was 80 something years old,
16 A. Ifthe clients ask us to run them longer, 16 doesn't know how to use a computer.
17 so we do. 17 Q. To the extent they ever existed or would
18 Q. Does that ever come at your suggestion or 18 have existed, would you still have the e-mail
19 is that solely coming from the client saying I want to 19 correspondence between the parties who commissioned
20 run this out longer? 20 these tests that we discussed today?
21 A. [have suggested to run it longer to more 21 A. Ihave -- | don't delete e-mails with
22 of a better, like so you can say you saw more 22 clients, so everything on my e-mail address should be
23 degradation in a certain amount of time. 23 there unless they delete certain e-mails after a
24 Q. And in these conversations you have verbal 24 certain amount of time.
25 conversations or are they e-mail conversations? Are | 25 Q. Is that information that you just spoke

ECM Opp to Mot to Tak8@4~870-8025 - www.ftrinc.net - (800) 921-5555
xh. A

33 (Pages 129 to 132)

For The Record, Inc.

Page 8 of 9


RETURN OF SERVICE
J hereby certify that a duplicate original of the within
subpoena was duly served: (check the mathod used)
O inperson.

© 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:

4/30/2014

(Month, day, and year)
Elisa Jullson

(Nemo of person making service)

AYtecney

(Offieta! tite)

ECM Opp to Mot to Take Depo
Exh. B

Page 4 of 8


Respondent’s Exhibit B


3. Thomas Nealis, ECM Director of Sales

Mr. Nealis will testify about ECM’s advertising and products, including but not limited to
ECM’s distribution and sales channels; customer base; communications with prospective
customers, customers, former customers, ASTM, testing facilities, scientists studying the
purported biodegradability of plastics, Plastics Environmental Council, and other parties
regarding the ECM additive and purported biodegradability of plastic; ECM’s claims of
biodegradability of plastics treated with the ECM additive; ECM’s substantiation for those
claims; other testing regarding the ECM additive and the alleged biodegradability of plastic;
facts alleged in the Complaint; any other issues addressed in his deposition; any documents
introduced into evidence by Respondent or Complaint Counsel as to which he has knowledge; or
any other matters as to which he has knowledge that are relevant to the allegations of the
Complaint, Respondent’s affirmative defenses, or the proposed relief.

4. Alan Poje, former ECM Regulatory Specialist

Mr. Poje will testify about ECM’s advertising and products, including but not limited to
ECM’s distribution and sales channels; customer base; communications with prospective
customers, customers, former customers, ASTM, testing facilities, scientists studying the
purported biodegradability of plastics, Plastics Environmental Council, and other parties
regarding the ECM additive and purported biodegradability of plastic; ECM’s claims of
biodegradability of plastics treated with the ECM additive; ECM’s substantiation for those
claims; other testing regarding the ECM additive and the alleged biodegradability of plastic;
facts alleged in the Complaint; any other issues addressed in his deposition; any documents

introduced into evidence by Respondent or Complaint Counsel as to which he has knowledge; or

ECM Opp to Mot to Take Depo Page 4 of 16
Exh. C


ECM BioFilms, Inc., et al. 5/9/2014
13 15
1 A. No. 1 Q. So you named Alan Johnson, Elizabeth
2 Q. Do you have a degree in science? 2 Wilde, and yourself are the three people who are
3 A. Ido not. 3 involved in the biodegradation studies?
4 Q. So when you say you set up the testing, 4 A. Right.
5 what does that mean? 5 Q. Is there anybody else who is involved in
6 A. When we set up the testing, we take all of 6 the biodegradation studies?
7 the samples that we get in and everything's labeled. 7 A. My grandfather started all of the
8 We take those and we cut them up and put them into 8 biodegradation studies, so Alan actually took over
9 triplicates. We set them into the incubators and with 9 when my grandfather passed away.
10 all the equipment that goes with that to run 10 Q. And when did your grandfather pass away?
11 everything. So we put them in an inoculum. We adda 11 A. He passed away in 2011.
12 culture to that. 12 Q. Prior to that was he running the tests?
13 Q. Who owns Northeast Labs? 13 A. He was the main person doing everything,
14 A. Alan Johnson does right now. 14 __ yes, and I was basically just an assistant helping.
15 Q. How long has he owned the lab? 15 Q. But now your responsibilities are broader?
16 A. The lab was actually co-owned by him and 16 A. Correct.
17 my grandfather, Dr. William Ullmann, until I believe 17 Q. Let the record reflect I'm going to mark a
18 last year it all went to Alan, 18 copy of a few Web pages from the Northeast Lab's Web
19 Q. And so now Alan Johnson owns the lab 19 site as NEL 2.
20 solely? 20 (Exhibit NEL 2, marked for
21 A. Yes. 21 identification.)
22 Q. He doesn't have any other partners? 22 Q. Ms. Ullmann, do you recognize this
23 A. No. 23 document?
24 Q. Besides Alan Johnson, who is the lab 24 A. Yes, I do.
25 director, and you -- what's your title? 25 Q. And what is it?
14 16
1 A. Project manager, biodegradation studies. 1 A. Our Web site printout.
2 Q. What are the other employees? 2 Q. On the first page it identifies a number
3 A. There are -- do you want me to name them 3 of licenses and certifications. I just want to go
4 all? 4 through them. Are you familiar with all the licenses
5 Q. Yes, unless it's like fifty. 5 and certifications that the lab has?
6 A. There's Kathy Fagan. She's a 6 A. I'm not 100 percent familiar with all of
7 receptionist. There's Larissa Johnson. She does all 7 them, no.
8 the book work, accounting. There is Melanie LaRose. 8 Q. Did you understand that that was one of
9 She's a microbiologist supervisor. There is Laurie 9 the topics identified in the deposition notice?
10 Howe. She's a microbiologist supervisor. There is 10 A. Ido, and we do have a copy of everything.
11 Michelle. I don't know how to say her last name. aT Q. So you brought a copy of all of the
12 She's a tech down in micro. There is Ryan Picard. He 12 certifications and licenses?
13 does a lot of pharmaceutical testing. There is Kelly 13 A. Yes.
14 Ullmann. She does -- she's the chemistry supervisor. 14 Q. Do you understand how each one is achieved
is There is Elizabeth Wilde. She helps with the 15 or earned or obtained?
16 biodegradation setups. 16 A. Ido not go through and do all of that
17 Then there is Jack Truhan. He's a 17 stuff, so I do not know how that is all obtained.
18 courier, and there is also Rich. I don't know his 18 Q. Do you know who would know that
19 last name. He's also a courier, and I think that's 19 information?
20 everyone. Oh, there is Elijah Yopp. He's an 20 A. [would guess Alan Johnson since he's now
21 assistant in the lab. There is Courtney Apell. She's 21 owner of the Jab.
22 also a lab assistant. There's Al Reigins. He ~ 22 Q. Do you know which licenses and
23 Q. I'm going to object to -- 23 certifications are required by Federal law or State
24 MR. JOHNSON: That's fine. 24 law for the lab to operate?
25 A. I don't know his title. 25 A. The FDA, USDA.

ECM Opp to Mot to TakgO¢p870-8025 - www.ftrinc.net - (800) 921-5555
Exh. A

4 (Pages 13 to 16)

For The Record, Inc.

Page 5 of 9


Pages 2 through 209
intentionally omitted

ECM Opp to Mot to Take Depo

Page 3 of 9
Exh. G


UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of
‘ECM BioFilms, Inc., Docket No. 9358
a corporation, alse d/b/a

Enviroplastics International PUBLIC DOCUMENT

ee

JOINT MOTION FOR ENTRY OF AN ORDER EXCLUDING
ROD ALIRE AS A WITNESS

Complaint Counsel conferred with Respondent ECM Biofilms, Inc. (“ECM”) regarding
Compliant Counsel’s intent to depose Mr. Rod Alire pursuant to Rule 3.33. In consideration of
Complaint Counsel’s agreement nat to depose Mr. Alire, ECM agrees not to call Mr. Alire at
trial. Complaint Counsel and ECM further stipulate and agree that Mr. Alire will not testify at
trial, even in rebuttal. Subject to the Court’s instructions, ' the parties respectfully request that

the Court enter the proposed order memorializing their stipulation.

Dated: May.d#, 2014 Respectfully submitted,

[S

Johnson (kjobnsor3 @ftc.gov)
Cohen (jcohen2@fic.gov)

lisa 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

And

! The parties are uncertain regarding how the Court would prefer them to approach
stipulations regarding testimony, as opposed to stipulations regarding documentary evidence.

ECM Opp to Mot to Take Depo Page 1 of 4
Exh. E



DATED: July 9, 2014

10

PUBLIC DOCUMENT

Respectfully submitted,

LE

Johathan W. Emord (jémord@emord.com)
EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938



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

Lee

COMPLAINT COUNSEL’S FINAL PROPOSED WITNESS LIST

Pursuant to the Court’s Third Revised Scheduling Order, dated May 22, 2014, Complaint
Counsel hereby provides its Final Proposed Witness List to Respondent ECM BioFilms, Inc.
(“ECM” or “Respondent”). This list identifies the witnesses who may testify for Complaint
Counsel at the hearing in this action by deposition and/or investigational hearing transcript,
affidavit, declaration, or orally by live witness.

Subject to the limitations in the Scheduling Order and Third Revised Scheduling Order
entered in this action, Complaint Counsel reserves the right:

A. To present testimony by deposition and/or investigational hearing transcript,
affidavit, declaration, or orally by live witness, from the custodian of records of
any party or non-party from whom documents or records have been obtained —
specifically including, but not limited to, those parties and non-parties listed
below—to the extent necessary to demonstrate the authenticity or admissibility of
documents in the event a stipulation cannot be reached concerning the
authentication or admissibility of such documents;

B. To present testimony by deposition and/or investigational hearing transcript,

affidavit, declaration, or orally by live witness, from persons listed below and any

ECM Opp to Mot to Take Depo Page 1 of 16
Exh. C


June 30: Sahu (Los Angeles, CA)

July 1: Stewart (Los Angeles, CA)

July 2: Burnette (Washington, D.C.)

July 14: Barlaz (Raleigh, NC)

July 15 or 16: Volokh (Atlanta, GA) (10:00 AM start as long as ECM guarantees a full day)

We think this is a reasonable compromise. You would have a full day with Volokh, although a July 16th date might make
more sense given the flights available. | am available to discuss today if necessary.

Thanks,

Peter

Peter A. Arhangelsky, Esq. | EMORD & Associates, P.C. | 3210S. 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 @ 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 docirine, If you are not the intended recipient, you should ireat this
communication as strictly confidential and provide it to the person intended. Duplication oF distribution of this communication is prohibited
bby the sender. if this communication has been sent fo you in error, please notify the sender and then immediately destroy the document.

From: Cohen, Jonathan [mailto:icohen2@ftc.gov}
Sent: Thursday, May 15, 2014 3:47 PM

To: Peter Arhangelsky
Ce: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord
Subject: RE: ECM Biofilms, No. 9358

Peter,

This isn’t perfect, but it accommodates your scheduling issues, as well as scheduling issues on our
end. With respect to our experts, we should be able to make rooms available locally for all three depositions, but Pll
need until next week to confirm that (it’s very likely). Please let me know if we have an agreement.

June 23: Frederick (New Haven, CT)

June 24: Tolymat (Cincinnati, OH)

June 27: McCarthy (Washington, D.C.)

June 30: Barlaz (Raleigh, NC)

July 1: Stewart (Los Angeles, CA)

July 2: Burnette (Washington, D.C.)

July 14: Sahu (Los Angeles, CA)

July 15: Volokh (Atlanta, GA) (10:00 AM start as long as ECM guarantees a full day)

Jonathan Cohen
Enforcement Division | Bureau of Consumer Protection | Federal Trade Commission
600 Pennsylvania Avenue, N.W., M-8102B Washington, D.C. 20580
3
ECM Opp to Mot to Take Depo Page 3 of 7
Exh. F


haven’t heard anything back. Accordingly, we’re noticing them per the attached document. Of course, we're still
willing to negotiate the schedule.

Tl give you a call regarding the Co/p/ast materials in about an hour.

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 | icohen2@fte.gov

From: Cohen, Jonathan

Sent: Wednesday, May 14, 2014 11:21 AM

To: ‘Peter Arhangelsky’

Cc: ‘Jonathan Emord'; 'Lou Caputo’; Jillson, Elisa; Johnson, Katherine; Cohen, Jonathan; Decastro, Arturo
Subject: RE: Expert Deposition Schedule

Peter,
Per your request, we revise the proposal as follows:

June 23: Frederick (New Haven, CT)
June 24: Tolymat (Cincinnati, OH)
June 27: McCarthy (Washington, D.C.)
July 9 — Burnette (Washington, DC)
July 10 — Stewart (Los Angeles, CA)
July 11 — Sahu (Los Angeles, CA)

July 15 - Volokh (Atlanta, GA)

July 16 - Barlaz (Raleigh, NC)

Accordingly, this accomodates ECM’s request that we provide dates for our experts between June 16 and
June 27. Please confirm the rest of the schedule, or let us know when you'll be able to do so, as we'd like to begin
making arrangements.

Best,

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: Tuesday, May 13, 2014 2:21 PM

To: Cohen, Jonathan

Cc: Jonathan Emord; Lou Caputo; Jillson, Elisa; Johnson, Katherine
Subject: RE: Expert Deposition Schedule

Jonathan,

Thanks for your proposal. We will discuss the schedule with our experts and report back shortly. Having discussed this
with our team, we have conflicts the first week of July which will require changes to the proposed schedule. Please
inform us when your experts are available between June 16-27. We will need to schedule your experts during that
window in June.

ECM Opp to Mot to Take Depo Page 5 of 7
Exh. F


Best,

Peter A. Arhangelsky, Esq. | EMorp & Associates, P.C. | 3210S. Gilbert Rd, Ste 4 | Chandler, AZ 85286
Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com

NOTICE: Ihis isa confidential communication intended for the recipient listed above. The content of this communication is protected from
disclosure by the aitomey-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. Dugticatien or distribution of this communication is prohibited
by the sender. If fhis communication has been sent to you in error, please notify the sender and then immediately destroy the document.

From: Cohen, Jonathan [mailto:icohen2 @ftc.gov

Sent: Tuesday, May 13, 2014 11:43 AM

To: Peter Arhangelsky; Lou Caputo; Jonathan Emord
Cc: Jillson, Elisa; Johnson, Katherine; Decastro, Arturo
Subject: RE: Expert Deposition Schedule

Peter,
One change with respect to the dates we propose for your experts:

July 2 — McCarthy (Washington, DC)
July 3 — Thabet (Cincinnati, OH)
July 8 — Frederick (New Haven, CT)
July 9 — Burnette (Washington, DC)
July 10 ~ Stewart (Los Angeles, CA)
July 11 - Sahu (Los Angeles, CA)
July 15 — Volokh (Atlanta, GA)

July 16 — Barlaz (Raleigh, NC)

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@fre.gov

From: Cohen, Jonathan

Sent: Monday, May 12, 2014 5:43 PM

To: ‘Peter Arhangelsky’; 'Lou Caputo’; ‘Jonathan Emord’
Ce: Jillson, Elisa; Johnson, Katherine; Decastro, Arturo
Subject: ECM: Expert Deposition Schedule

Peter,

Per our call, we have cleared dates with our experts. Based on those dates, we propose the following overall

schedule:

July 2 —- McCarthy (Washington, DC)
July 3 — Thabet (Cincinnati, OH)
July 8 ~ Frederick (New Haven, CT)
July 9 — Burnette (Washington, DC)

ECM Opp to Mot to Take Depo
Exh. F

Page 6 of 7


ECM Opp to Mot to Take Depo

Exh. B

8. Your knowledge of, involvement in, or interaction with, in any, the Plastics
Environmental Council and any other industry trade or interest group related to plastics,
biodegradability of plastics, or additives.

9. Your knowledge of and involvement, if any, in ASTM International (f/k/a the
American Society for Testing and Materials) (“ASTM”), and any other efforts to set, establish,
or modify industry or legal standards for the evaluation of the biodegradability of plastic.

10. Your knowledge of ASTM standards used to evaluate (a) the alleged
biodegradability of plastic; and (b) biodegradability in a landfill.

11. Your knowledge, if any, of documents, materials, or other information that calls
into question the scientific tests conducted by You, or the results or conclusions of those tests.

12. Your knowledge, if any, of documents, materials, or other information that calls
into question the scientific tests conducted by anyone else on the ECM Additive or ECM
Plastic, or the results or conclusions of those tests.

13. Your knowledge, if any, of any potential bias or conflict of interest of any of the
following:

a. Dr. Ramani Narayan
b. Biodegradable Products Institute
c. Dr. Frederick Michel
d. Robert Sinclair
e. Dr. Morton Barlaz
f. Dr. Stephen McCarthy
g. Dr. Timothy Barber
h. Dr. Ryan Burnette
14. Your document retention policies, practices, and procedures.

15. Your response to the subpoenas duces tecum issued to You in the above-captioned
action.

16. | Your Communications with ECM’s attorneys and Robert Sinclair.

Page 7 of 8


ECM BioFilms, Inc., et al.

RP oO 8 BI DH oF B® wWwrH Be

Bok

Tolaymat, Ph.D.

MR. DECASTRO: Objection. Vague.

THE WITNESS: The negative control,
they called it a negative control. Based on my
review of the document, it is a negative control,
so no.

BY MR. ARHANGELSKY:

Q. The experiment was conducted
alongside a negative control, right?

A. That is correct.

Q. So if there were errors in
methodology that were present in the test, would
you expect to see those in the control as well?

MR. DECASTRO: Objection. Asked and
answered.

THE WITNESS: Would you expect them
to be seen in the control? Potentially, but you
have to realize the numbers that we are reading,
and let me go back and take a look -- we are
reading ~- and it's amazing that we could read --
on a thousand ML graduated cylinder, we can read a
measurement of two MLs. That is the amount of
measurements these ~- you know, these empioyees
are reading.

A thousand ML, you're reading two MLs

(indicating), but the issue of one reading is not

For The Record, Inc.
(301) 870-8025 - www. ftrinc.net - (800) 921-5555

ECM Opp to Mot to Take Depo

Exh. G

213

6/24/2014

Page 8 of 9


PUBLIC DOCUMENT

time this month, or whether the burden of another day trip to New Haven, CT would negatively
impact NE Lab’s business. This instant request is excessive, which in fact characterizes
Complaint Counsel’s prosecution to date.!®

Complaint Counsel has had ample opportunity to perform this discovery in a timely
fashion without prejudicing ECM. Since May 9, 2014, following the first NE Labs deposition,
Complaint Counsel knew that Alyssa Ullmann was an uninformed witness who could not
address the scientific issues raised by Complaint Counsel in that deposition. She is a lab
technician who follows directions from the “lab director,” Mr. Alan Johnson.'9 She has no
scientific background. However most of NE Lab’s tests reveal that ECM’s product resulted in
substantial biodegradation under the D5511 test protocol. In an effort to diminish ECM’s
supportive science, Complaint Counsel’s experts have testified, unconvincingly, that laboratory
error may have resulted in those repeated, positive test results.”°

Ina similar situation, during a separate deposition of ECM’s customer FP International,
the corporate designee testified that another individual, Rod Alire, possessed better knowledge of
FP’s testing protocols. Complaint Counsel declared its intent to perform a follow-up deposition
of Mr. Alire. The parties ultimately entered a stipulation that would avoid the deposition,
provided ECM agreed not to call Mr. Alire as a witness at the hearing.) Likewise with NE

Labs, Complaint Counsel knew that Alan Johnson was the more informed witness; they just

'S In prior motions before this Court, ECM has explained Complaint Counsel’s
blunderbuss approach to discovery which ultimately forced ECM to search and deliver more than
116,000 pages of responsive correspondence with customers, marketing, and all other manner of
marginally relevant files. On July 8, 2014, Complaint Counsel filed yet another motion to
compel documents from ECM’: files, this time demanding information never before known to
ECM or its counsel. ECM will of course oppose that motion separately.

9 Ullmann Tr. at 11-13, 129 (Exh. A).

20 See Tolaymat Tr. Excerpt, at 210-213 (Exh. G).

21 See Exh. E (Stipulation Concerning Rod Alire).

7


PUBLIC DOCUMENT

events in this case without having to supplement filings or move deadlines any further.!? The
earliest time available for Mr. Johnson’s deposition may well be the week of July 23rd, which
falls after many significant pretrial deadlines in this case, and just one week before the final
Pretrial Conference.'*

Despite the added burden, the parties already agreed to extend the period for expert
discovery to accommodate two expert witness depositions after the deadline in the Scheduling
Order, during the week of July 14th.!* Moreover, Complaint Counsel just introduced a new
expert witness last week.!° If this Court permits Complaint Counsel to add an expert despite
Complaint Counsel’s discovery abuses, ECM will be required to participate in multiple
depositions far beyond the date this Court would have closed discovery on July 2, 2014 and
perilously close to the July 29 prehearing conference and the August 5 commencement of the
hearing.

The burdens of these depositions are not limited to parties in this case. Through its
instant Motion, Complaint Counsel would force NE Labs, an independent third party, into yet
another deposition, and that could be followed by live testimony in Washington, D.C. It would
do so despite the fact that Complaint Counsel has been on notice since May 9 that Alan Johnson
was the principal at NE Labs with requisite knowledge.” From its Motion, Complaint Counsel

does not seem to have assessed whether Mr. Johnson would be available for a deposition any

} The parties were forced to schedule two of ECM’s experts for depositions the week of
July 14th because, with the number of experts involved and the witnesses’ schedules, completing
all expert discovery within the deadline was nearly impossible.

14 That assumes that Mr. Johnson is even available.

15 See Exh. F (Email concerning deposition scheduling).

‘6 That disclosure and use of a new expert is subject to a now pending motion to exclude
for violations of the Scheduling Order in this case.

" See, e.g., Ullmann Tr. at 10-13, 127-29 (Exh. A).

6


Tr. Pages 16 through 125
intentionally omitted

ECM Opp to Mot to Take Depo Page 6 of 9
Exh. A


PUBLIC DOCUMENT

CERTIFICATE OF SERVICE
I hereby certify that on July 9, 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 through the e-filing system:

Donald S. Clark, Secretary
Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-113

Washington, DC 20580
Email: secretary@ftc.gov

The Honorable D. Michael Chappell

Administrative Law Judge

One electronic courtesy copy to the Office of the Administrative Law Judge:

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

Katherine Johnson

Division of Enforcement
Bureau of Consumer Protection
Federal Trade Commission
600 Pennsylvania Avenue, NW
Mail stop M-8102B
Washington, D.C. 20580
Email: kjohnson3@ftc.gov

Jonathan Cohen

Division of Enforcement
Bureau of Consumer Protection
Federal Trade Commission

600 Pennsylvania Avenue, NW
Mail stop M-8102B
Washington, D.C. 20580

Email: jcohen2@ftc.gov

I 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.

One electronic copy to Counsel for Complainant:

Elisa Jillson

Division of Enfoncement
Bureau of Consumer Protection
Federal Trade Commission
600 Pennsylvania Avenue, NW
Mail stop M-8102B
Washington, D.C. 20580

Email: ejillson@ftc.gov

Arturo Decastro

Division of Enfoncement
Bureau of Consumer Protection
Federal Trade Commission
600 Pennsylvania Avenue, NW
Mail stop M-8102B
Washington, D.C. 20580
Email: adecastro@tftc.gov



Enclosures

ECM Opp to Mot to Take Depo
Exh. B

Sincerely,

Katherine Johnson
Complaint Counsel

Page 2 of 8


PUBLIC DOet

TRADE
<
UNITED STATES OF AMERICA Co Nevo Maa

BEFORE THE FEDERAL TRADE COMMISSIC 07 4 (0) 2014
OFFICE OF THE ADMINISTRATIVE LAW JUD@
S76835

Washington, D.C.

In the Matter of | Tociestn. 9551 OR | G IN AL

ECM BioFilms, Inc.,
a corporation, also d/b/a
Enviroplastics International, PUBLIC

cS)

Ss

Respondent.

RESPONDENT ECM BIOFILM’S OPPOSITION TO COMPLAINT COUNSEL’S
MOTION FOR LEAVE TO TAKE THE DEPOSITION OF ALAN JOHNSON

Respondent ECM BioFilms hereby opposes Complaint Counsel’s Motion for Leave to
Take the Deposition of Alan Johnson (“Motion”). This Court should not permit yet another
extension of fact discovery so close to the date of hearing and beyond the already liberally
extended deadline for fact discovery. In addition, Complaint Counsel is seeking to depose a fact
witness from a company they themselves listed months ago and whose representative they have
already deposed. Complaint Counsel offers no sound justification for its dilatory conduct and
certainly not the justification required for such a late request to change the discovery calendar in
ways that conflict with deadlines in the third Revised Scheduling Order. Complaint Counsel’s
requested deposition not only conflicts with deadlines established in the third Revised
Scheduling Order, it exposes ECM to considerable hardship as it prepares for the hearing that
begins in less than 30 days, and it burdens independent third parties without requisite proof of
necessity, such as its inability to conduct the desired deposition earlier and within the time limits

established in the Scheduling Order.


CERTIFICATE OF SERVICE
Thereby certify that on June 11, 2014, I caused a true and correct copy of the paper
original of the foregoing Complaint Counsel’s Final Proposed Witness List to ECM BioFilms,
Inc. to be served as follows:

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord Peter Arhangelsky

Emord & Associates, P.C. Emord & Associates, P.C.

11808 Wolf Run Lane 3210 S. Gilbert Road, Suite 4
Clifton, VA 20124 Chandler, AZ 85286

Email: jemord@emord.com Email: parhangelsky@emord.com
Lou Caputo

Emord & Associates, P.C.
3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286

Email: lcaputo@emord.com

I further certify that I possess a paper copy of the signed original of the foregoing
document that is available for review by the parties and the adjudicator.

Dated: June 11, 2014 Respectfully submitted,
“f/f |

CA YD
Katherine Johnsog-(kjohnson3 @ftc. gov)
Jonathan Cohen (jcohen2@ftc.gov)
Elisa Jillson (ejillson@ftc.gov)
Federal Trade Commission
600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580
Phone: 202-326-2185; -2551; -3001
Fax: 202-326-2551

ECM Opp to Mot to Take Depo Page 16 of 16

Exh. C


Executed this 9th day of July, 2014 in Chandler, Arizona.

Peter A. Arhangelsky,
‘counsel to ECM Biofilms


UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.
In the Matter of
Docket No. 9358
ECM BioFilms, Inc.,
a corporation, also d/b/a
Enviroplastics International, PUBLIC
Respondent.

DECLARATION OF PETER A. ARHANGELSKY
IN SUPPORT OF RESPONDENT ECM BIOFILM’S OPPOSITION TO COMPLAINT
COUNSEL’S MOTION FOR LEAVE TO TAKE THE DEPOSITION OF ALAN
JOHNSON

In accordance with 28 U.S.C. § 1746, I declare under the penalty of perjury that the
following is true and correct:

1. J am over 18 years of age, and [ am a citizen of the United States. I am employed
as an attorney with Emord & Associates, P.C., which represents ECM BioFilms in this matter. I
am an attorney of record in the above-captioned matter, and I have personal knowledge of the
facts set forth herein.

2. The following exhibits, which are attached as Exhibits to the above-captioned
motion, are true and correct copies of files received by ECM or in ECM’s possession:

Exh. A. Excerpts of A. Ullmann Deposition Testimony (May 9, 2015)
Exh. B. Complaint Counsel’s Subpoena to Northeast Labs

Exh. C. | Complaint Counsel’s Final Proposed Witness List

Exh. D. Complaint Counsel’s Preliminary Witness List

Exh. E. Joint Motion Concerning the Testimony of Rod Alire

Exh. F. Email correspondence between counsel re deposition scheduling (May
2014)

Exh, G. Excerpts of T. Tolaymat Deposition Testimony (June 24, 2014)


Respondent’s Exhibit E


Northeast’s training and supervision of its laboratory employees; the qualifications of
Northeast’s employees; Northeast’s knowledge of, use of, and departure from ASTM testing
standards; Northeast’s financial interest in testing the purported biodegradability of plastic; any
other issues addressed in her deposition; any documents introduced into evidence by Respondent
or Complaint Counsel as to which she has knowledge; or any other matters as to which she has
knowledge that are relevant to the allegations of the Complaint, Respondents affirmative
defenses, or the proposed relief.

19. Timothy Barber, Principal at Environ International Corp. (“Environ”)

Dr. Barber will testify regarding his relationship and communications with ECM, ECM’s
employees, ECM’s customers, and other parties interested in the alleged biodegradability of
plastic; his testing and evaluation of plastic that purportedly contains the ECM additive; his
testing facilities, resources, procedures, protocols, and certifications; his training and supervision
of its laboratory employees; the qualifications of personnel involved in his testing of plastics; his
knowledge of, use of, and departure from ASTM testing standards; his financial interest in
testing the purported biodegradability of plastic; any other issues addressed in his deposition; any
documents introduced into evidence by Respondent or Complaint Counsel as to which he has
knowledge; or any other matters as to which he has knowledge that are relevant to the allegations
of the Complaint, Respondent’s affirmative defenses, or the proposed relief.

20.  Tadahisa Iwata, Professor of Polymer Chemistry at the University of Tokyo

and Editor for Journal of Polymer Degradation and Stability published by
Elsevier Inc. (“Elsevier”), as Elsevier’s designee

Professor Iwata will testify regarding the review and evaluation of the article entitled

“Biodegradability of conventional and bio-based plastics and natural fiber composites during

composting, anaerobic digestion and long-term soil incubation,” written by Eddie F. Gomez and

ECM Opp to Mot to Take Depo Page 12 of 16

Exh. C


Respondent’s Exhibit C


Respondent’s Exhibit D


CERTIFICATE OF SERVICE

Thereby certify that on April 30, 2014, I caused a true and correct copy of the foregoing
document to be served by email to Counsel for the Respondent:

Jonathan W. Emord
Emord & Associates, P.C.
11808 Wolf Run Lane
Clifton, VA 20124

Email: jemord@emord.com

Lou Caputo

Emord & Associates, P.C.
3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286

Email: leaputo@emord.com

Dated: April 30, 2014

ECM Opp to Mot to Take Depo

Exh. B

Peter Athangelsky

Emord & Associates, P.C.
3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286

Email: parhangelsky@emord.com

Jonathan Cohen (jechen2@fic.gov)
Elisa Jillson (ejillson@fic.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580

Phone: 202-326-2185; -2551; -3001
Fax: 202-326-2551

Page 8 of 8



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@fregov

From: Cohen, Jonathan

Sent: Monday, May 19, 2014 3:52 PM

To: 'Peter Arhangelsky'

Ce: Johnson, Katherine; Jillson, Elisa; ‘Lou Caputo’; Jonathan Emord'
Subject: RE: ECM Biofilms, No. 9358

Peter,

We accept this compromise schedule, which is what you most recently ptoposed:

June 23: Frederick (New Haven, CT)

June 24: Tolymat (Cincinnati, OH)

June 27: McCarthy (Washington, D.C.)

June 30: Sahu (Los Angeles, CA)

July 1: Stewart (Los Angeles, CA)

July 2: Burnette (Washington, D.C.)

July 14: Barlaz (Raleigh, NC)

July 15: Volokh (Atlanta, GA) (10:00 AM start/ECM guarantees a full day)

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@fte.pov

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com]
Sent: Friday, May 16, 2014 12:34 PM

To: Cohen, Jonathan

Ce: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord
Subject: RE: ECM Biofilms, No. 9358

Jonathan,

I think the schedule unnecessarily burdens ECM because it would require excessive travel. Your proposal separates the
California depositions, which would require two separate trips to California instead of one. You have also scheduled Dr.
Sahu on a date we did not say he was available. He is not available the week of July 14th, so his date will need to
change. We have no objection to scheduling Burnette for July 2nd, thus separating the Washington, D.C. pair, and
preventing witness depositions out of order. We are counter-proposing the following dates (swapping Barlaz with
Sahu):

June 23: Frederick (New Haven, CT)
June 24: Tolymat (Cincinnati, OH)
June 27: McCarthy (Washington, D.C.)

ECM Opp to Mot to Take Depo Page 2 of 7
Exh. F


PUBLIC DOCUMENT

failed to proceed with diligence and then, at the 11th hour after the deadline, they expect the
Court and ECM to accede to another deposition on the eve of the hearing; nothing could be more
disruptive and unjustified given the circumstances. Indeed, given the aggressive and
comprehensive deposition schedule in this case, the only reasonable inference is that Complaint
Counsel chose to avoid Alan Johnson’s follow-up deposition because that decision suited their
strategy at the time. ECM should not now suffer from Complaint Counsel’s sudden volte face to
pursue a discovery lead it neglected earlier.

For the foregoing reasons, therefore, ECM requests that this Court deny Complaint

Counsel’s motion.

Respectfully submitted,

/s/ Jonathan W. Emord
Jonathan W. Emord (jemord@emord.com)
EMORD & ASSOCIATES, P.C.
11808 Wolf Run Lane
Clifton, VA 20124
Telephone: 202-466-6937
Facsimile: 202-466-6938

DATED: July 9, 2014.


Ullmann

ECM BioFilms, Inc., et al. 5/9/2014
=
133 135
1 of, is that information that you would be willing to 1 CERTIFICATE OF REPORTER
2 produce to complaint counsel or ECM BioFilms in this 2 I, Jacqueline V. McCauley, a Notary Public
3 matter under the subpoenas we have issued? 3 duly commissioned and qualified in and for the State
4 A. Yeah, I believe we did send -- we sent 4 of Connecticut, do hereby certify that pursuant to
5 every e-mail that we had that had ECM in the subject 5 Notice, there came before me, on the 9th day of May,
6 and in my e-mails. 6 2014 at 9:21 a.m., the following named person, to wit:
7 Q. Is it your understanding that the 7 ALYSSA ULLMANN, who was by me duly swom to testify to
8 subpoenas were only limited to information that 8 the truth and nothing but the truth; that she was
9 specifically mentioned ECM? 9 thereupon carefully examined upon her oath and her
10 A. Right. We only sent stuff with ECM in it. 10 examination reduced to writing under my supervision;
11 Q. Is that the only information that you were il that this deposition is a true record of the testimony
12 asked to produce to Garrett when he discussed the 12 given by the witness.
13. production documents? 13 1 further certify that I am neither attomey
14 A. Yes. 14 nor counsel for, nor related to, nor employed by any
15 Q. Give me just a minute here. You know, I 15 of the parties to the action in which this deposition
16 think that's going to do it for us. I would just make 16 is taken, and further, that I am not a relative or
17 one point on the record that I think I'm aware that 7 employee of any attorney or counsel employed by the
18 the witness has brought some files today to the 18 parties hereto, or financially interested in the
19 deposition, and I would just request that we be made 19 action.
20 to have a copy of those, Katherine, if that's at all 20 IN WITNESS HEREOF, I have hereunto set my hand
21 possible. 21 and affixed my seal this 18th day of May, 2014.
22 MS. JOHNSON: I will. I will do it 22
23 first thing next week. | don't think I will be able 23 Jacqueline V. McCauley
24 to do it today, because I will be traveling back to 24 Notary Public
25 D.C., but 1 do have a copy of the documents that they 25 My Commission expires: 5/31/2014
134
1 produced at the deposition, and I will produce those
2 to you guys as soon as I can.
3 MR. ARHANGELSKY: Okay, thank you.
4 We have nothing further.
5 MS. JOHNSON: Okay. I guess we're
6 off the record then.
7 (Whereupon, this deposition was
8 concluded at 1:25 p.m.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

ECM Opp to Mot to Tak8@¢)870-8025 - www. ftrinc.net - (800) 921-5555

Exh. A

34 (Pages 133 to 135)

For The Record, Inc.

Page 9 of 9


58. Keith Christman or Representative of American Chemistry Council
Karen Schmidt
Assistant General Counsel
American Chemistry Council
1300 Wilson Boulevard
Arlington, VA 22209
Proposed Testimony: We anticipate that this witness will testify regarding consumer
perception of biodegradability claims.
59. Representative of Synovate (acquired by Ipsos)
Proposed Testimony: We anticipate that this witness will testify regarding consumer
perception of biodegradability claims.
60. John Aiken, Investigator, Federal Trade Commission
Complaint Counsel
Proposed Testimony: Authentication of exhibits.
61. William Burton, Investigator, Federal Trade Commission (retired)
Complaint Counsel
Proposed Testimony: Authentication of exhibits.
62. Representative of The National Advertising Division of the Council of Better Business
Bureaus, Inc.
Proposed Testimony: We anticipate that this witness will testify regarding complaints
and challenges filed against ECM or customers of ECM; any investigation and outcomes
of those complaints and challenges, including any analysis of ECM’s substantiation
materials; resulting case reports; and authentication of exhibits.
Dated: January 17, 2014 Respect! Subpnitted,
“Ki Johnson (kjohnson3 @fic.gov)
an Cohen (jcohen2@fte. gov)
f isa Jillson (ejillson@fte.gov)
"Federal Trade Commission
600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580
Phone: 202-326-2185; -2551; -3001
Fax: 202-326-2551
10
ECM Opp to Mot to Take Depo Page 10 of 11

Exh. D



ECM BioFilms, Inc., et al.

or

Tolaymat, Ph.D.

a problem. The compounding factor that you're
reading this two MLs or ten MLs or eight Mls or
three MLs over a period of three years, nine
hundred days, that provides a huge margin of
error.

That would make this report --
whether the positive control is -- negative
control is a negative control or not, provides a
huge uncertainty with regards to the validity of
the results.

BY MR. ARHANGELSKY:

Q. You said a huge margin of error. Did
you calculate a margin of error for this test?

A. No.

Q. Do you know if the raw data was
available to you for this specific test?

A. Do I? No, but I'm assuming the
spreadsheets are here.

Q. Do you know if this test was run in
triplicates?

A. Yes.

Q. Did you perform any statistical
analysis of the triplicate data before arriving at
your conclusion here right now that the test was

unreliable?

For The Record, Inc.
(301) 870-8025 - www. ftrinc.net - (800) 921-5555

ECM Opp to Mot to Take Depo

Exh. G

214

6/24/2014

Page 9 of 9


Respondent’s Exhibit F


9 Ashley Leiti, D&W Fine Pack, LLC Southeastern National Accounts
Manager, as D& W’s designee

Ms. Leiti will testify regarding D&W’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, D&W’s purchase of ECM
additive; reasons for this purchase; D&'W’s understanding of ECM’s claims and substantiation
for those claims; D&W’s use and understanding of the ECM Certificate of Biodegradability, the
ECM logo, and other ECM promotional material; D&W’s understanding of how its customers
used ECM promotional materials and products made with the ECM additive; any other issues
addressed in her deposition; any documents introduced into evidence by Respondent or
Complaint Counsel as to which she has knowledge; or any other matters as to which she has
knowledge that are relevant to the allegations of the Complaint, Respondent’s affirmative
defenses, or the proposed relief.

10. Frank Santana, Down To Earth All Vegetarian Organic & Natural (“Down
To Earth”) Marketing Director, as Down To Earth’s designee

Mr. Santana will testify regarding Down To Earth’s relationship with ECM and
understanding of ECM’s product, claims, and testing, including, but not limited to, Down To
Earth’s purchase of plastic bags containing the ECM additive; reasons for this purchase; Down
To Earth’s understanding of ECM’s claims and substantiation for those claims; Down To Earth’s
resources and ability to test and evaluate ECM’s claims and substantiation; Down To Earth’s use
and understanding of the ECM Certificate of Biodegradability, the ECM logo, and other ECM
promotional material; any other issues addressed in his deposition; any documents introduced
into evidence by Respondent or Complaint Counsel as to which he has knowledge; or any other
matters as to which he has knowledge that are relevant to the allegations of the Complaint,

Respondent's affirmative defenses, or the proposed relief.

ECM Opp to Mot to Take Depo Page 7 of 16

Exh. C


210
Tolaymat, Ph.D.

ECM BioFilms, Inc., et al. 6/24/2014
1 documents that was provided to me, leads me to
2 believe -- leads me to question the results in
3 this study.
4 BY MR. ARHANGELSKY:
5 Q. What specifically leads you to
6 question the results of this study?
7 A. Number one, we talked -- and I don't
8 want to repeat for the third time, but I will.
9 The ASTM method is a gross estimate. You are

10 using very inaccurate scientific measurements, and
11 what happens when you start using inaccurate
12 scientific measurements to make precise small
13 measurements, you are compounding your error.
14 That's number one.
15 Number two, I reviewed the Northeast
16 Laboratory testimony with regards to the way they
17 conducted this test, and it leaves a lot to be
18 desired in terms of quality control and quality
19 assurance.
20 You know, the test was carried out in
21 paint cans and the inoculum was replaced
22 approximately every six months, but, you know, we
23 look at the paint can, and if we see any
24 degradation of the can, we replace it.
25 What type of scientific study is
For The Record, Inc.
(301) 870-8025 - www. ftrinc.net - (800) 921-5555
ECM Opp to Mot to Take Depo Page 5 of 9

Exh. G


11. George Collins, Eagle Film Extruders Inc. (“Eagle”) President, as Eagle’s
designee

Mr. Collins will testify regarding Eagle’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, Eagle’s purchase of ECM
additive; reasons for this purchase; Eagle’s understanding of ECM’s claims and substantiation
for those claims; Eagle’s resources and ability to test and evaluate ECM’s claims and
substantiation; Eagle’s use and understanding of the ECM Certificate of Biodegradability, the
ECM logo, and other ECM promotional material; Eagle’s understanding of how its customers
used ECM promotional materials and products made with the ECM additive; any other issues
addressed in his deposition; any documents introduced into evidence by Respondent or
Complaint Counsel as to which he has knowledge; or any other matters as to which he has
knowledge that are relevant to the allegations of the Complaint, Respondent’s affirmative
defenses, or the proposed relief.

12. David Sandry, Flexible Plastics, Inc. (“Flexible”) Vice President, as Flexible’s
designee

Mr. Sandry will testify regarding Flexible’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, Flexible’s purchase of ECM
additive; reasons for this purchase; Flexible’s understanding of ECM’s claims and substantiation
for those claims; Flexible’s resources and ability to test and evaluate ECM’s claims and
substantiation; Flexible’s use and understanding of the ECM Certificate of Biodegradability, the
ECM logo, and other ECM promotional material; Flexible’s understanding of how its customers
used ECM promotional materials and products made with the ECM additive; any other issues
addressed in his deposition; any documents introduced into evidence by Respondent or

Complaint Counsel as to which he has knowledge; or any other matters as to which he has

ECM Opp to Mot to Take Depo Page 8 of 16
Exh. C


27. All persons identified in ECM’s redacted document production on December 27, 2013
(Bates no. ECM-FTC-648-1859).

Proposed Testimony: We anticipate that these witnesses will testify about ECM’s
products, distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims, or
regarding their purchase of ECM Additive, their use of the Certificate of Biodegradability, their
use of the ECM logo, and their understanding of ECM’s claims of biodegradability.

28. Representatives of entities identified in ECM’s redacted document production on
December 27, 2013 (Bates no. ECM-FTC-648-1859).

Proposed Testimony: We anticipate that these witnesses will testify about ECM’s
products, distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims, or
regarding their purchase of ECM Additive, their use of the Certificate of Biodegradability, their
use of the ECM logo, and their understanding of ECM’s claims of ‘biodegradability.

29. Representatives of ECM’s prospective customers.

Proposed Testimony: We anticipate that these witnesses will testify regarding their
purchase of ECM Additive, their use of the Certificate of Biodegradability, their use of the ECM
logo, their understanding of ECM’s claims of biodegradability, and their understanding of
ECM’s claims that it had substantiation for its biodegradable claims.

30. Representatives of ECM’s current customers.

Proposed Testimony: We anticipate that these witnesses will testify regarding their
purchase of ECM Additive, their use of the Certificate of Biodegradability, their use of the ECM
logo, and their understanding of ECM’s claims of biodegradability, and their understanding of
ECM’s claims that it had substantiation for its biodegradable claims.

31. Jewel Vuong and/or representative of American Plastics Manufacturing, Inc.

Mark S. Leen

Inslee, Best, Doezie & Ryder, PS
Symetra Financial Center, Suite 1900
777 108th Ave. Northeast

Bellevue, WA 98004

(425) 450-4219

Proposed Testimony: We anticipate that this witness will testify regarding their purchase
of ECM Additive, their use of the Certificate of Biodegradability, their use of the ECM logo, and
their understanding of ECM’s claims of biodegradability, and their understanding of ECM’s
claims that it had substantiation for its biodegradable claims.

ECM Opp to Mot to Take Depo Page 6 of 11
Exh. D



UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

ECM BioFihms, Inc.,
a corporation, also d/b/a
Enviroplastics International

Docket No. 9358

Need

Exh. B

COMPLAINT COUNSEL’S NOTICE OF RULE 3.33(c)(1) DEPOSITION

To: Northeast Laboratories, Inc.

DEFINITIONS

A. “Communication” includes, but is not limited to, any transmittal, exchange, transfer, or
dissemination of information, regardless of the means by which it was accomplished, and
includes all communications, whether written or oral.

B. “ECM” shall mean ECM Biofilms, Inc., including without limitation, its agents,
employees, officers, or anyone else acting on its behalf.

[on “ECM Additive” means any plastic additive directly or indirectly sold or distributed by
ECM Biofilms, Inc.

D. “CCM Certificate” means any certificate provided to you by ECM that represents that
any plastic or product containing the ECM Additive is biodegradable.

E. “ECM Logo” means any logo provided to you by ECM that references biodegradability.
“ECM Plastic” means any product that contains the ECM Additive.

G. “Include” and “including” mean “without limitation,” or “including but not limited to,”
so as to avoid excluding any documents or information that might otherwise be construed
to be within the scope of any specification.

H. “You” and “Your” means Northeast Laboratories, Inc., along with any affiliates,
successors, predecessors, entities You acquired, entities You control, and entities whose
information You control.

INSTRUCTIONS

A. Protective Order: On October 22, 2013, the Court entered an order governing discovery
material in this matter. A copy of the Protective Order is attached hereto as Exhibit A
with instructions on the handling of confidential information.

B. Petitions to Limit or Quash: Pursuant to Commission Rule of Practice 3.34(c), any
motion to limit or quash this subpoena must be filed within ten days of service hereof.

1
ECM Opp to Mot to Take Depo Page 5 of 8


SI.

$2.

53.

54.

55.

56.

37.

Any individual associated with scientific testing that ECM contends substantiates its
claims.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

The representative of any entity associated with scientific testing that ECM contends
substantiates its claims.

Proposed Testimony: We anticipate that this witness wil! testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

Ranajit Sahu

Kelley Drye

Washington Harbour, Suite 4000
3050 K Street, NW

Washington, DC 20007

(202) 342-8588

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

Charles Lancelot, Plastics Environmental Council

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

Clifford Moriyama, Plastics Environmental Council

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

Representative of Plastics Environmental Council

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

Mark Benson or Representative of APCO Insight

Judith S. Sapier

Senior Vice President, General Counsel, Secretary
APCO Insight

700 12th Street NW, Suite 800

Washington, DC

(202) 779-1000

Proposed Testimony: We anticipate that this witness will testify regarding consumer
perception of biodegradability claims.

ECM Opp to Mot to Take Depo Page 9 of 11

Exh. D



Eric Awerbuch
ee

From: Cohen, Jonathan <jcohen2@ftc.gov>

Sent: Wednesday, May 21, 2014 11:48 AM

To: Peter Arhangelsky

Ce: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord
Subject: RE: ECM Biofilms, No. 9358

Peter,

The EPA can host in Cincinnati.
Are we all set?

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. gow

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com]
Sent: Wednesday, May 21, 2014 12:52 PM

To: Cohen, Jonathan

Cc: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord
Subject: RE: ECM Biofilms, No. 9358

Jonathan,

Thank you for your flexibility. We need to identify locations for our depositions of your asserted experts. We propose
the FTC building at 400 7th Street for Dr. McCarthy on June 27th. Given the government's resources, we ask that you
identify a suitable location for your experts in Cincinnati and Connecticut. Because we need to serve our Notices of
Deposition soon, we may need to designate your experts’ local offices until further notice. Please advise.

Thanks,

Peter A. Arhangelsky, Esq. | EMorD & Associates, P.C. | 3210S. Gilbert Rd. Ste 4 | Chandler, AZ 85286
Firm: (602) 388-8899 | Direct: (602) 334-4416 | Facsimile: (602) 393-4361 | www.emord.com

NOTICE: This isa confidential communication intended for the recipient listed above. The content of this communication is protected from
disclosure by the aitorney-client privilege and the work product doctrine. If you are not the intended recipient, you should treat this
communication as strictly confidential and provide if to the person intended. Duplication or distribution of this communication is prohibited
by the sender. If this commuriication hos been sent fo you in error, please notily the sender and then immediately destroy the document.

From: Cohen, Jonathan [mailto:icohen2 @ftc.gov!
Sent: Monday, May 19, 2014 7:38 PM

To: Peter Arhangelsky
Cc: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord
Subject: RE: ECM Biofilms, No. 9358

Pet the below.

ECM Opp to Mot to Take Depo Page 1 of 7
Exh. F


PUBLIC DOCUMENT

party or third party outweigh its likely benefit.” See 16 C.F.R. § 3.31(c)(2)(iii); see also 16
C.F.R. § 3.33(b) (stating that the ALJ may preclude a deposition where the “value of the
deposition would be outweighed by the considerations in Rule 3.43); 16 C.F.R. § 3.43(b) (stating
that evidence should be precluded based on considerations of undue delay, waste of time, or
needless presentation of cumulative evidence). There is no extraordinary reason for extending
the fact discovery deadlines yet again and at this late hour, and Complaint Counsel’s proposed
deposition would result in substantial burdens for ECM.

Complaint Counsel’s own dilatory pursuit of evidence and late identification of experts is
a fault of its own and ought not be condoned through extraordinary extensions of the schedule in
a case that has already involved Commission intervention to perform an extraordinary extension
of the hearing deadline. The cost of Complaint Counsel’s erratic, meandering and ill-timed
discovery practice has been considerable.'° Complaint Counsel has already performed nineteen
(19) fact depositions of testing laboratories and ECM customers all over the country, in Hawaii,
California, New York, Ohio, and the District of Columbia, to name a few.'! Those depositions
included the following persons and entities:

e Northeast Labs (May 9, 2014)

e BER Plastics (May 8, 2014)

© D&W Fine Pack, LLC (May 5, 2014)

© The transcripts alone in this case have cost over $1,000 per document. Other costs
include attorney fees, costs of travel and lodging, and document costs. Perhaps the biggest cost,
however, is the toss of time and resources during the final pretrial phase of this case when
multiple deadlines arrive each week.

"| By contrast, to eliminate extraordinary burden, the Federal Rules of Civil Procedure
generally prohibit a party from seeking more than ten (10) depositions. See Fed. R. Civ. Pro
30(a)(2)(A)(i). Parties seeking to expand that number must justify the necessity of each
deposition. See, e.g., Archer Daniels Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187
F.R.D. 578, 586 (D.Minn. 1999) (collecting cases),

4


Dr. Frederick will testify, from his perspective as an expert in the fields of marketing and
consumer decision-making, about his analysis and/or performance of studies concerning
consumers’ perception of biodegradable marketing claims and ECM’s biodegradability claims.

27.  Thabet Tolyamet, Ph.D.

Dr. Tolyamet is an Environmental Engineer and researcher in the field of solid waste
management at the U.S. Environmental Protection Agency’s Office of Research and
Development. His research focuses on solid waste management, bioreactor landfills, waste
containment performance, construction and demolition of waste landfills, and the fate and
transport of environmental pollutants. A significant part of his education, training, and
experience has involved conducting and evaluating tests that purport to show biodegradation
and/or replicate landfill conditions.

Dr. Tolyamet will testify, from his perspective as an expert in the field of landfill design
and management, about whether plastic products manufactured with ECM’s additive will
completely biodegrade in five years or less under ordinary U.S. landfill disposal conditions, and
whether ECM testing data are not competent and reliable scientific evidence that ECM Plastics

will biodegrade in five years or less in most landfills.

Dated: June 11, 2014 Respectfully submitted,
— }

, /
Gf fo fies,
MCh f Ee.

Katherine Johnson (kjohnson3@ftc.gov)

Jonathan Cohen (jcohen2@ftc.gov)

Elisa Jillson (ejillson@fitc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B

Washington, DC 20580

Phone: 202-326-2185; -2551; -3001

Fax: 202-326-2551

ECM Opp to Mot to Take Depo Page 15 of 16
Exh. C


Frederick C. Michel, Jr., and published by the Journal of Polymer Degradation and Stability, an
Elsevier publication, including, but not limited to, conflict-of-interest checking performed on the
article’s authors. Professor Iwata will also testify as to any other issues addressed in his
deposition; any documents introduced into evidence by Respondent or Complaint Counsel as to
which he has knowledge; or any other matters as to which he has knowledge that are relevant to
the allegations of the Complaint, Respondent's affirmative defenses, or the proposed relief.

Current and Fonner FTC Employees

21. John Aiken, Investigator, Federal Trade Commission, Bureau of Consumer
Protection, Division of Marketing Practices (formerly of the Division of
Enforcement)

Mr. Aiken will testify regarding the admissibility of certain website and webpage

captures produced by Complaint Counsel in this action.

22. William Burton, former Investigator, Federal Trade Commission, Bureau of
Consumer Protection, Division of Enforcement

Mr. Burton will testify regarding the admissibility of certain website and webpage
captures produced by Complaint Counsel in this action.

23. Dayid Hendrickson, Investigator, Federal Trade Commission, Bureau of
Consumer Protection, Division of Enforcement

Mr. Hendrickson will testify regarding the admissibility of certain website and webpage
captures produced by Complaint Counsel in this action.
24. Mary Jo Vantusko, Investigator, Federal Trade Commission, East Central
Region
Ms. Vantusko will testify about photographs she took of various products at ECM’s

office in Painesville, Ohio.

13

ECM Opp to Mot to Take Depo Page 13 of 16

Exh. C


(202) 326-2551 | jcohen2@fic.gov

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com]
Sent: Thursday, May 15, 2014 5:46 PM

To: Cohen, Jonathan

Ce: Johnson, Katherine; Jillson, Elisa; Lou Caputo; Jonathan Emord
Subject: RE: ECM Biofilms, No. 9358

Jonathan,
Per our conversation this afternoon, ECM proposes the following deposition schedule:

June 23: Fredetick (New Haven, CT)
June 24: Tolymat (Cincinnati, OH)

June 26: Burnette (Washington, D.C.)
June 27: McCarthy (Washington, D.C.)
June 30: Sahu (Los Angeles, CA)

July 1: Stewart (Los Angeles, CA)

July 14: Barlaz (Raleigh, NC)

July 16 (or July 15): Volokh (Atlanta, GA)

With respect to your witnesses, please let us know if we can designate a local office in New Haven, Cincinnati, and
Washington, D.C. Although Dr. Volokh is available on July 15th, we would prefer July 16th to eliminate potential travel
issues.

Let me know if we need to discuss this further.

Thanks,

Peter A. Arhangelsky, Esq. | Emord & Associates, P.C. | 3210S. 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. Ihe content of this communication is protected from
c'selosure by the attorney-client priviege and the work product doctrine. If you are not the intended recipient, you should treat this
communication os strictly confidential and provide it to the person intended. Duplication or distribution of this communication is prohibited
by the sender. If this communication has een sent to you in enor, please notify the sender and then immediately destroy the document.

From: Cohen, Jonathan [mailto:jcohen2@ftc.gov’

Sent: Thursday, May 15, 2014 1:07 PM

To: Peter Arhangelsky

Cc: Jonathan Emord; Lou Caputo; Jillson, Elisa; Johnson, Katherine; Decastro, Arturo
Subject: ECM Biofilms, No. 9358

We've provided ECM with proposed dates for our experts, and when ECM responded with a request that
we provide different dates for our experts within a 12-day period ECM selected, we accommodated that request in
less than a day. However, with respect to the dates for ECM’s experts that we proposed several days ago, we

ECM Opp to Mot to Take Depo Page 4 of 7
Exh. F


ECM BioFilms, Inc., et al.

5/9/2014

1 3
1 1 INDEX
2 - 2
3
3 IN THE MATTER OF : a Appearances ~
4 ECM BIOFILMS, INC., a corporation, : 5 Stipulations
5 Also d/b/a ENVIROPLASTICS INTERNATIONAL, 6 Certificate -
a 7
6 8 WITNESS:
Ly 9 ALYSSA ULLMANN
8 DEPOSITION OF: ALYSSA ULLMANN 10 Direct examination by Ms. Johnson 6
9 DATE: MAY 9, 2014 u Cross examination by Mr. Arhangelsky 126
: 12
10 HELD AT: U.S. ATTORNEY'S OFFICE | 13 prc gxurarrs:
n 157 CHURCH STREET 14 Exhibit 1 Subpoena -- 7
12 25TH FLOOR Exhibit 2 Website Printout
B NEW HAVEN, conNecrrcur | 15 Exhibit 3 Report Summary ASTM D5511-02
Exhibit 4 Report Summary ASTM D5511-02
4 16 Exhibit 5 Report Summary ASTM D5511-11
15 Exhibit 6 Report Summary ASTM D5511-12
16 17 Exhibit 7 4/23/12 Report --
ne Exhibit 8 Analytical Summary by Northeast Labs 80
18 Exhibit 9 E-Mail Text File
18 Exhibit 10 5/19/11 Analytical Report
19 19 Exhibit 11 8/1/12 Certificate of Analysis ------ 94
20 Exhibit 12 Analytical Report from Northeast Labs 104
20
21 2i (All exhibits marked during the deposition were taken
2 by the court reporter and placed in the original
23 22 transcript.)
2B
24 24
25 4
2 4
1 APPEARANCES: 1 STIPULATIONS
2
REPRESENTING THE FEDERAL TRADE COMMISSION: 2
3
SEDER TRAD [CORPTSSTON, 3 It is stipulated by the Attorneys for the
4 BUREAU OF CONSUMER PROTECTION 4 Plaintiff and the Defendant that all objections are
601 NEW JERSEY AVENUE, NW A :
5 WASHINGTON Dice 20002 $ reserved until the time of trial, except those
(202) 326-2506 6 objections as are directed to the form of the
6 By: KATHERINE E.S. JOHNSON, ATTORNEY
DIVISION OF ENFORCEMENT 7 question.
7 kjohnson3@fte.gov 8
8
REPRESENTING ECM BIOFILMS, INC: 9 It is stipulated and agreed between counsel
er ae 10 for the parties that the proof of the authority of the
10 3210 S. GILBERT ROAD 1 Commissioner before whom this deposition is taken is
SUITE 4
ll CHANDLER, ARIZONA 85286 12 waived.
(602) 388-8899 13
12. By: PETER ARHANGELSKY, ESQUIRE
parhangelsky@emord.com cry It is further stipulated that any defects in
HH (VIA SPEAKERPHONE) 15 the Notice are waived.
REPRESENTING NORTHEAST LABS: 16
is
JOHNSON LEGAL GROUP 17 It is further stipulated that the reading and
16 129 wrt STREET 18 signing of the deposition transcript by the witness is
17 BERLIN, CONNECTICUT 06037 19 waived.
(860) 828-5026 0
18 By: GARRETT JOHNSON, ESQUIRE
garrettwjohnson@gmail.com 2
19
20 2
i
Fy 23
2B 24
24
PH 25

ECM Opp to Mot to Tak8O¢p870-8025 - www. ftrinc.net - (800) 921-5555

oe
1 (Pages 1 to 4)

For The Record, Inc.

Exh. A

Page 2 of 9


41. Paul J. Kappus, BIOPVC, Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

42. Ramani Narayan, Michigan State University

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

43. Representative of Microtech Research, Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

44. John Lake and/or Representative of Bio-Tec Environmental LLC

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

45. William W. Ulman, Northeast Laboratories, Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

46. Garrett W. Johnson, Northeast Laboratories, Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

47. Representative of Northeast Laboratories, Inc.

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

48. Thomas Poth and/or Representative of Eden Research Laboratory

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

49. Morton A. Barlaz, North Carolina State University

Proposed Testimony: We anticipate that this witness will testify regarding ECM’s claims
of biodegradability and the substantiation for such claims.

50. Representative of ASTM International

Proposed Testimony: We anticipate that this witness will testify regarding ASTM.
standards, ECM’s claims of biodegradability, and the substantiation for such claims.

ECM Opp to Mot to Take Depo Page 8 of 11
Exh. D



ECM Opp to Mot to Take Depo
Exh. E

PUBLIC DOCUMENT

oY

iy 1
[7 a
fen / avs
Jonathan W. Emord (j¢mord@emord.com)

Peter A. Arhangelsky
(parhangelsky@emord.com)

Lou F. Caputo (caputo@emord.com)
Emord & Associates, P.C,

11808 Wolf Run Lane, Clifton, VA 20124
Phone: (202) 388-8899

Fax: (202) 466-6938

Page 2 of 4


Ullmann

ECM BioFilms, Inc., et al. 5/9/2014
9 il
1 Q. And when you say you sat down with the lab 1 is whether you were the person responsible for
2 director, who is that? 2 gathering the documents that were responsive to the
3 A. Alan Johnson. 3. subpoena. When I mean responsive -- when I say
4 Q. And then you also sat down with Mr. 4 responsive, I mean that responded to the specific
5 Johnson? 5 requests that were made.
6 A. Yes. 6 A. Both Garrett and I did. Sorry.
7 Q. Is there a relationship between -- 7 Q. My fault. I need to be more clear. So
8 A. Yeah. The lab director is his father. 8 you and Garrett were the only two who went through the
9 Q. Does the lab director have a degree? 9 documents. How did you conduct the search of those
10 A. Yes, he does. 10 documents?
Il Q. Do you know what that degree is? 11 A. Everything is saved on our computer in a
12 A. I don't know what his degree is. 12 certain file, and I did a search for everything with
13 Q. You don't. Do you know if it's a Master's 13 ECM in the title or in the documents.
14 degree? 4 Q. Is it possible that you would have run
15 A. Ido not know exactly. 15 tests on a plastic, and it wouldn't have reflected
16 Q. Would you know if it was a Ph.D.? Do you 16 that it contained the ECM additive?
17 call him Dr. Johnson? 7 MR. ARHANGELSKY: Objection.
18 A. No, it's not a Ph.D. 18 A. We do a lot of tests, and we do not ask
19 Q. Do you know what his degree is in? 19 them to give us what additive they use. We only put
20 A. I would guess either chemistry or biology. 20 that on the document if they give us that information.
21 Q. What else did you do to prepare for this 21 Q. So it's possible that there are tests out
22 deposition today? 22 there?
23 A. I went through e-mails with the people who 23 A. It's possible, but we would not know.
24 were listed on this such as Robert Sinclair. 24 Q. Also wanted to mention if you need to take
25 Q. You received, and when I say you, I mean 25 a break, just let me know, and we can take a break.
10 12
1 Northeast Labs received a subpoena from the Respondent 1 A. Okay.
2 in this case to produce documents; is that correct? 2 Q. If [have asked a question, just answer
3 A. Correct. 3 the question before we take a break. How did you
4 Q. Did you uncover any additional documents 4 prepare for the deposition today?
5 that were responsive to that subpoena when you were 5 A. How did I prepare? I just sat down with
6 preparing for this deposition? 6 Garrett and Alan like I mentioned earlier, and we just
7 A. What do you mean? 7 talked about it and looked through the documents that
8 Q. Did you find any e-mails with Mr. Sinclair 8 we had.
9 that were not produced? 9 Q. And did you talk with anybody else other
10 A. No. 10 than Alan, Alan Johnson and Garrett Johnson?
W Q. Did you find any other tests that were not It A. Idid not.
12 produced? 12 Q. Ms. Ullmann, what is your role at
13 A. No. 13 Northeast Labs?
14 Q. Were you the one who prepared the 14 A. Thandle all of the projects that come in
15 documents that were responsive to the ECM's document 15 for the biodegradation testing. I help set up the
16 subpoena? 16 testing for the biodegradation. I do most of the
17 A. Did I send like -- 17 reports for the biodegradation testing, handle all the
18 Q. Did you prepare? Did you -- 18 phone calls, e-mails.
19 A. Would that be the reports that we sent? 19 Q. And what's your background your,
20 Q. Yes. 20 educational background?
21 A. They were in different timeframes, all the 21 A. I'm still in school for accounting.
22 reports, so I prepared some of them. I did not 22 Q. When you say school, what level?
23 prepare all of them. 23 A. Ihave -- I take classes online, so] am
24 Q. Maybe let me ask the question again, 24 getting my Bachelor's.
25 because I don't know if you understood. My question 25 Q. Do you have any other degrees?
—— ed

ECM Opp to Mot to Takg@¢p870-8025 - www.ftrinc.net - (800) 921-5555

Exh. A

3 (Pages 9 to 12)

For The Record, tnc.

Page 4 of 9


PUBLIC DOCUMENT

NE Labs who performs biodegradation studies at Alan Johnson’s direction.’ Throughout her
short deposition, she explained that she lacked fundamental information concerning the methods
by which NE Labs performs its biodegradation testing, or the scientific reasons supporting same.
Note well that in her testimony Ms. Ullmann identified Alan Johnson as the man in the know at
NE Labs.” Yet, despite that fact, from May 9 to the present, Complaint Counsel has sat upon its
hands and not sought to depose Mr. Johnson until now. Complaint Counsel has no one but itself
to blame for the delay, and neither this Court nor its party opponent should be forced to bear the
burden of a change in the Scheduling Order just one month before hearing and 20 days before
the final prehearing conference.

To be sure, there are many fact witnesses that ECM might have deposed were resources
unlimited and the calendar more liberal, but ECM does not have that luxury and neither does
Complaint Counsel. Allowing Complaint Counsel an extraordinary concession now is to the
distinct prejudice of ECM unless the entire fact discovery calendar were reopened and the

hearing postponed, which would require Commission intervention.

ARGUMENT
This Court has the power to limit discovery that is “unreasonably cumulative or
duplicative,” or where “[t]he party seeking discovery had ample opportunity by discovery in the
action to obtain the information sought...” See 16 C.F.R. § 3.3 1(c)(2)(i)-(ii). Furthermore, the

Court should limit discovery where the “burden and expense of the proposed discovery ona

8 Id. at 11-13; Id. at 127 (explaining that A. Ullmann would defer to trained scientist, and
she “would just type everything”); Jd. at 129 (explaining that A. Johnson is Ms. Ullmann’s boss,
and that he is the person who makes scientific decisions).

° See Ullman Tr. at 10-13, 127-29 (Exh. A).

3


his deposition; any documents introduced into evidence by Respondent or Complaint Counsel as
to which he has knowledge; or any other matters as to which he has knowledge that are relevant
to the allegations of the Complaint, Respondent’s affirmative defenses, or the proposed relief.

‘A Robert Ringley, BER Plastics, Inc. (“BER”) Vice President, as BER’s
designee

Mr. Ringley will testify regarding BER’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, BER’s purchase of ECM
additive; reasons for this purchase; BER’s understanding of ECM’s claims and substantiation for
those claims; BER’s resources and ability to test and evaluate ECM’s claims and substantiation;
BER?’s use and understanding of the ECM Certificate of Biodegradability, the ECM logo, and
other ECM pyomotional material; BER’s understanding of how its customers used ECM
promotional materials and products made with the ECM additive; any other issues addressed in
his deposition; any documents introduced into evidence by Respondent or Complaint Counsel as
to which he has knowledge; or any other matters as to which he has knowledge that are relevant
to the allegations of the Complaint, Respondent’s affirmative defenses, or the proposed relief.

8. Donald Kizer, D&W Fine Pack, LLC (“D&W”) Purchasing Manager, as
D&W’s designee

Mr. Kizer will testify regarding D&W’s relationship with ECM and understanding of
ECM’s product, claims, and testing, including, but not limited to, D&W’s purchase of ECM
additive; reasons for this purchase; D&W’s resources and ability to test and evaluate ECM’s
claims and substantiation; any other issues addressed in his deposition; any documents
introduced into evidence by Respondent or Complaint Counsel as to which he has knowledge; or
any other matters as to which he has knowledge that are relevant to the allegations of the

Complaint, Respondent’s affirmative defenses, or the proposed relief.

ECM Opp to Mot to Take Depo Page 6 of 16
Exh. C


211
Tolaymat, Ph.D.

ECM BioFilms, Inc., et al. 6/24/2014
1 that? Basically, you're leaving it up to an
2 untrained person to make a scientific decision and
3 judgment on whether something has to be changed in
4 the experimental design.
5 Q. Was the testimony, in your opinion,
6 that they changed the paint can when the paint can
7 showed signs of degradation?
8 A. That's what I understood from the
9 testimony, yes.
10 Q. And your understanding was, what,
1. that they used a metal paint can?
12 A. They didn't say. They said paint
13 can.
14 Q. Okay. So you're attributing, then,
15 the increase in biodegradation in this to sloppy
16 methodology?
17 A. Yes.
18 Q. And specifically the use of a paint
19 can and the replacement of the inoculum?
20 A. Yes.
21 Q. Anything else?
22 A. Whatever -- yeah.
23 Q. There was a control used in this
24 test, was there not?
25 A. Yes. Uh~hum.
For The Record, Inc.
(301) 870-8025 - www.ftrinc.net - (800) 921-5555
ECM Opp to Mot to Take Depo Page 6 of 9

Exh. G


Issued Pursuant to Rule

SUBPOENA AD TESTIFICANDUM
DEPOSITION

Provided by the Secretary of the Federal Trade Commission, and

3.34(a), 16 C.F.R. § 3.34(a) (2010)

Northeast Laboratories, Inc.
clo Garrett W. Johnson, Esq.
129 Mill Street

Berlin, CT 06037

2. FROM

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

This subpoena requires you to appear and give testimony at ti

he 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 Stakes fttooney ~ New) tavern, ORce |
Connecticuk Financial Center

15 F Church St 5 Floor ae

New tlaven, CT C6510

4. YOUR APPEARANCE WILL BE BEFORE

Complaint Counsel and other designated counsel

5. DATE AND TIME OF DEPOSITION.

May 4 2O1y of Foo A.M.

6. SUBJECT OF PROCEEDING

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

7. ADMINISTRATIVE LAW JUDGE

The Honorable D. Michael Chappell

Federal Trade Commission

8. COUNSEL AND PARTY ISSUING SUBPOENA

Complaint Counsel

Katherine Johnson (202) 326-2185
Jonathan Cohen (202) 326-2551
Elisa Jillson (202) 326-3001

Washington, D.C. 20580

DATE SIGNED

4130 f 014

SIGNATURE OF COUNSEL ISSUING SUBPOENA

ELt1—

GENERAL INSTRUCTIONS

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 earliér of 10
days after service or the time for compliance. The
originat 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.

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 ttem 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 fo 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:/bit. lWETCRulesofPrastice. Paper copies are

available upon request.

This subpoena does not require approval by OMB under
the Paperwork Reduction Act of 1980.

EGM QnrdeMat ig7f ake Depo
Exh. B

Page 3 of 8


PUBLIC DOCUMENT

BACKGROUND

Northeast Labs (“NE Labs”) is a testing laboratory located in Berlin, Connecticut. It
offers a variety of testing services, including biodegradation testing under ASTM standards.! NE
Labs was listed on Complaint Counsel’s preliminary witness list, and in Complaint Counsel’s
Final Proposed Witness List. See Exhs. C & D. On May 9, 2014, Complaint Counsel took the
deposition of NE Labs at the U.S. Attorney’s Office in New Haven, Connecticut2 NE Labs has
performed a number of tests on plastics that included the ECM additive, revealing substantial
plastic biodegradation, which tests will be introduced as hearing exhibits. Alan Johnson is the
Laboratory Director at NE Labs. Mr. Johnson is the person who makes scientific decisions
concerning the testing protocols.? He is the most knowledgeable person at NE Labs to answer
questions concerning scientific issues related to testing.4 ECM Biofilms listed Alan Johnson on
its Final Proposed Witness List. ECM produced its Final Proposed Witness List on June 25,
2014, listing Alan Johnson in place of the original corporate designee, Alyssa Ullmann.5

NE Labs’ Rule 3.33(c)(1) corporate designee for the May 9, 2014 deposition was Alyssa
Ullmann, the granddaughter of the late William W. Ullmann, Ph.D., who founded the company
and worked alongside Alan Johnson for years. Alyssa Ullmann has no scientific background.®

She has a high school education, and attends school for accounting.” She is a lab technician at

' Exh. A, Ullmann Tr, at 101.

? See Exh. B (Complaint Counsel’s subpoena ad testificandum).
3 Ullman Tr. at 129 (Exh. A).

4 Id. at 130.

5 See Exh. C (ECM’s Final Proposed Witness List).

6 Id. at 11-13.

7 Id. at 12-13.


_ 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

Vee ee eS

COMPLAINT COUNSEL’S PRELIMINARY WITNESS LIST

Pursuant to the Court’s Scheduling Order, Complaint Counsel hereby submits its
Preliminary Witness List identifying individuals who may testify in Complaint Counsel’s case-
in-chief (excluding expert witnesses, rebuttal witnesses and rebuttal expert witnesses) and a brief
description of their proposed testimony. This list is based upon the information reasonably
available to Complaint Counsel at this time.

Significantly, Respondent's failure to comply with either its Initial Disclosure obligations
or Complaint Counsel’s discovery requests prevents Complaint Counsel from providing a
complete list or fully detailing the subjects upon which potential witnesses may testify. Among
other things, Respondent did not provide its customer list to Complaint Counsel until late
yesterday and still has not complied with a majority of Complaint Counsel’s document requests
(including the most important requests). Respondent’s failures have substantially limited the
information reasonably available to Complaint Counsel, and we reserve the right to amend this

list as more information becomes available.!

“Where Complaint Counsel understands that the potential witness is represented, we will
provide contact information.

ECM Opp to Mot to Take Depo Page 1 of 11
Exh. D



other person that Respondent identifies as a potential witness in this action;

c, To amend this Final Proposed Witness List to be consistent with the Court’s
ruling on any pending motions, including any motions in limine filed in this
matter;

D. To question the persons listed below about any topics that are the subjects of
testimony by witnesses to be called by Respondent;

E. Not to present testimony by deposition and/or investigational hearing transcript,
affidavit, declaration, or orally by live witness, from any of the persons listed
below;

F. To question any person listed below about any other topics that the person
testified about at his or her deposition or investigational hearing, or about any
matter that is discussed in any documents to which the person had access and
which are designated as exhibits by either party or which have been produced
since the person’s deposition was taken;

G. To present testimony by deposition and/or investigational hearing transcript,
affidavit, declaration, or orally by live witness, from any persons, regardless
whether they are listed below, to rebut the testimony of witnesses proffered by
Respondent;

H. For any individual listed below as being associated with a corporation,
government agency, or other non-party entity, to substitute a witness designated
by the associated non-party entity; and

L To supplement this Final Proposed Witness List in light of Respondent’s Final

Proposed Witness List and Exhibit List, or as circumstances may warrant.

ECM Opp to Mot to Take Depo Page 2 of 16
Exh, C


used ECM promotional materials and products made with the ECM additive; any other issues
addressed in his deposition; any documents introduced into evidence by Respondent or
Complaint Counsel as to which he has knowledge; or any other matters as to which he has
knowledge that are relevant to the allegations of the Complaint, Respondent’s affirmative
defenses, or the proposed relief.

Individuals and Laboratories Associated with Scientific Review or Literature

17. Thomas Poth, Eden Research Laboratory (“Eden”) Lab Director, as Eden’s
designee

Mr. Poth will testify regarding Eden’s relationship and communications with ECM,
ECM’s employees, ECM’s customers, and other parties interested in the alleged biodegradability
of plastic; Eden’s testing and evaluation of plastic that purportedly contains the ECM additive;
Eden’s testing facilities, resources, procedures, protocols, certifications; Eden’s training and
supervision of its laboratory employees; the qualifications of Eden’s employees; Eden’s
knowledge of, use of, and departure from ASTM testing standards; Eden’s financial interest in
testing the purported biodegradability of plastic; any other issues addressed in his deposition; any
documents introduced into evidence by Respondent or Complaint Counsel as to which he has
knowledge; or any other matters as to which he has knowledge that are relevant to the allegations
of the Complaint, Respondent’s affirmative defenses, or the proposed relief.

18. Alyssa Ullman, Northeast Laboratories, Inc. (“Northeast”) Biodegradation
Studies employee, as Northeast’s designee

Ms. Ullman will testify regarding Northeast’s relationship and communications with
ECM, ECM’s employees, ECM’s customers, and other parties interested in the alleged
biodegradability of plastic; Northeast’s testing and evaluation of plastic that purportedly contains

the ECM additive; Northeast’s testing facilities, resources, procedures, protocols, certifications;

i

ECM Opp to Mot to Take Depo Page 11 of 16
Exh. C


DEPOSITION TOPICS

PLEASE TAKE NOTICE that Complaint Counsel will depose Northeast Laboratories,
Inc. (“Company”), upon oral examination, pursuant to Rules §§ 3.33(c)(1) and 3.34(a), as to the
matters set forth below.

1. Your testing, assessment, or evaluation of the alleged biodegradability of the
ECM Additive or ECM Plastic, including, but not limited to:

a. Every aspect of the testing procedures, protocols, and methodologies used to
perform testing, assessment, or evaluation of any ECM Additive or ECM Plastic,
including specifics as to how the tests, assessments, or evaluations were
performed, the source of the test specimens, source and cultivation of inoculum,
temperature, moisture, or other test conditions for each test performed.

b. The results of all testing, assessments, or evaluations conducted by You on any
ECM Additive or ECM Plastic.

c. The conclusions drawn from the results of all testing, assessments, or evaluations
conducted by You on any ECM Additive or ECM Plastic.

d. The reports prepared by You on the testing, assessment, or evaluation of any
ECM Additive or ECM Plastic.

e. The process by which You decided to recommend a particular testing procedure,
protocol, or methodology used to perform testing on any ECM Additive or ECM
Plastic.

2. Your qualifications to conduct testing, assessment, or evaluation of the alleged
biodegradability of the ECM Additive or ECM Plastic.

3, All of Your quality control measures, policies, and procedures,

4, All of Your laboratory instrumentation and laboratory equipment validations,
maintenance and calibrations.

5. All local, State, and Federal regulatory requirements, inspections, and
accreditations, registrations, licenses, and certifications required or held by You.

6. Any audit conducted by anyone and the results of such audits.

7. Your Communications regarding the ECM Additive, the alleged biodegradability
of ECM Plastic, and the biodegradability (or lack thereof) of plastics, including, without
timitation, (a) Communications with any ECM employee, (b) internal Communications, and (c)
Communications with third parties such as ECM customers, ECM users, ECM competitors,
trade groups interested in additives and/or plastic.

ECM Opp to Mot to Take Depo Page 6 of 8
Exh. B 3


Respondent’s Exhibit A


CERTIFICATE OF SERVICE

Thereby certify that on May 1, 201
document to be served as follows: i

One electronic courtesy copy to the Office of the Secretary:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsyivania Ave., NW, Room H-159

Washington, DC 20580
mail: secrete

One electronic 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: leaputo@emord.com

Date: May %, 2014

1S

ECM Opp to Mot to Take Depo

Exh. E

PUBLIC DOCUMENT

4, I caused a true and correct copy of the foregoing

Peter Arhangelsky

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286

Email: parhangelsky@emord.com

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580 :
Phone: 202-326-2185; -2551; -3001 '
Fax: 202-326-2551

Page 4 of 4


ECM BioFilms, Inc., et al.

YO OU KR WHY BE

10
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12
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16
17
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Tolaymat, Ph.D.

Q. Do you have any doubts that the
control was not proper?

A. Yes.

Q. You do have doubts that the control
was not proper?

A. Uh-hum.

Q. What are your specific factual bases
to think that the control was not a proper
control?

A. Similarly, the experiment as a whole
was conducted, in my opinion, in substandard
conditions.

Q. I didn't ask the question about the
test as a whole. Specifically with regard to the
negative control, do you have any factual basis to
suggest that the negative control was not a proper
negative control?

A. The negative control was evaluated -in
a similar fashion that the test material was
evaluated, and once their -- the data --
sloppiness gets into the data, the whole data, the
whole experiment, gets into question.

Q. I think the question was, is there a
factual basis to suspect that the negative control

itself was not a true negative control?

For The Record, Inc.
(301) 870-8025 - www. ftrinc.net - (800) 921-5555

ECM Opp to Mot to Take Depo

Exh. G

212

6/24/2014

Page 7 of 9


Complaint Counsel’s Preliminary Witness List
In the Matter of ECM Biofilms, Inc., Docket No. 9358

Robert Sinclair, ECM Biofilms, Inc.

Counsel for ECM Biofilms, Inc.
Jonathan W. Emord

Emord & Associates, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

Proposed Testimony: We anticipate that this witness will testify about ECM Biofilms,

Inc. (“ECM”)’s products, distribution and sales channels, financial information, customer base,
customer communications, interactions with ASTM and scientific testing facilities, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

2.

Thomas Nealis, ECM Biofilms, Inc.

Counsel for ECM Biofilms, Inc.
Jonathan W. Emord

Emord & Associates, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,

distribution and sales channels, financial information, customer base, customer communications,
claims of biodegradability of plastics treated with ECM products, and substantiation for those

claims.

3.

Ken Sullivan, ECM Biofilms, Inc.

Counsel for ECM Biofilms, Inc.
Jonathan W. Emord

Emord & Associates, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Email: jernord@emord.com

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,

distribution and sales channels, financial information, customer base, customer communications,
claims of biodegradability of plastics treated with ECM products, and substantiation for those

claims.

4.

Scott A. Fletcher, ECM Biofilms, Inc.

Counsel for ECM Biofilms, Inc.
Jonathan W. Emord

Emord & Associates, P.C.
11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

ECM Opp to Mot to Take Depo Page 2 of i1

Exh. D



ll. Kristen M. Isabel, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify aboul ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

12. Michelle L. Johnson, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

13. Michael J. Montesanto, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

14. Janet Morcillo, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

15. Jamie S. Morton, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

16. Alan C. Poje, Former Employée of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

17. Edwin J. Senter, Former Employee of ECM Biofilms, Inc.

Proposed Testimony: We anticipate that this witness will testify about ECM’s products,
distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

18. Kathryn M. Stuber, Former Employee of ECM Biofilms, Inc.
Proposed Testimony: We anticipate that this witness will testify about ECM’s products,

distribution and sales channels, customer base, customer communications, claims of
biodegradability of plastics treated with ECM products, and substantiation for those claims.

ECM Opp to Mot to Take Depo Page 4 of 11
Exh. D



Ullmann

ECM BioFilms, Inc., et al. 5/9/2014
5 7
1 (The deposition commenced at 9:21 a.m.) I A. Okay.
2 COURT REPORTER: Peter, did you want 2 Q. Also, if you nod your head or give some
3 a copy of this transcript? 3 other non-oral response, the court reporter won't be
4 MR. ARHANGELSKY: Take it under 4 able to record it, so yes, no. Do you understand? Is
5 advisement. I'll get back to you on that. Most 5 that clear?
6 likely, but what kind of copy we want is yet to be 6 A. Yes,
7 determined. il Q. Do you understand that you're here today
8 COURT REPORTER: Could I have your 8 to represent Northeast Laboratories?
9 phone number? 9 A. Yes.
10 MR. ARHANGELSKY: I'm sorry? 10 Q. And you are coming in response to a
i COURT REPORTER: Could I have your 11 subpoena that was issued in this case?
12 phone number? 12 A. Yes.
13 MR. ARHANGELSKY: (602) 334-4416. 13 Q. Let the record reflect that I'm going to
14 COURT REPORTER: And your e-mail 14 mark a copy of the subpoena as NEL I, and I'm going to
15 address, please? 15 give a copy to the court reporter and then a copy for
16 MR. ARHANGELSKY: It's 16 you, Ms. Ullmann.
17 parhamgelsky@emord.com. 17 A. Thank you.
18 ALYSSA ULLMAN, Deponent, having first been | 18 Q. And a copy for you, Mr. Johnson.
19 duly sworn, deposes and states as follows: 19 A. Thank you.
20 MS. ULLMANN: Alyssa Ullmann, 30 20 Q. Peter, did you hear?
21 Great Meadow Lane, Avon, Connecticut, 06001, 21 MR. ARHANGELSKY: Thank you very
22 A-L-Y-S-S-A, U-L-L-M-A-N-N. 22 much.
23 MS. JOHNSON: Hi, Ms. Ullmann. I'm 23 (Exhibit NEL 1, marked for
24 Katherine Johnson. I represent complaint counsel in 24 identification.)
25 this case. This is the ECM BioFilms matter. It's 25 Q. Is this a copy of the subpoena that you
6 8
1 docket number 9358. Before I begin I'm just going to 1 received?
2 have all counsel make their appearance for the record. 2 A. Yes.
3 MR. ARHANGELSKY: Thank you. Peter 3 Q. Did you -- can you just flip forward to —
4 Arhangelsky for the respondent, ECM BioFilms. 4 there's a section called deposition topics?
5 MR. JOHNSON: Garrett Johnson 5 A. Oh yeah.
6 representing Northeast Labs and Ms. Ullmann. 6 Q. Just take a moment. Have you prepared --
7 DIRECT EXAMINATION BY MS. JOHNSON: 7 are you prepared today to testify about each one of
8 Q. Ms. Ullmann, have you ever been deposed 8 these topics? You can take a look and take a minute
9 before? 9 to review them.
10 A. [have not. 10 A. Yes.
il Q. Have you ever been a witness at trial? ll Q. Are you prepared to testify accurately and
12 A. Thave not. 12 truthfully about all these topics?
13 Q. So 1am just going to go over a few sort 13 A. Yes.
14 of instructions, ground rules that hopefully will make 4 Q. You took an oath?
15 this a little bit easier. The court reporter here is 15 A. Yeah.
16 going to be recording everything that we say, so just 16 Q. Do you understand what that means?
17 try to speak clearly so that she can understand. If 17 A. Yes.
18 we talk over each other, she is not going to be able 18 Q. What does that mean?
19 to type, so just wait for me to finish asking my 19 A. To tell the truth, nothing but the truth.
20 question and then answer. 20 Q. What did you do to prepare for this
21 If you don't understand my question, 21 deposition?
22 let me know. I will try to repeat it or rephrase it 22 A. Isat down with our lab director as well
23 or I will have the court reporter read it back to you. 23 as Garrett, and we went through this stuff. We went
24 And if you answer a question, I'm going to assume you | 24 over all the testing that we did that we have on
25 understood what the question was. 25 record that included ECM's additive.
=

ECM Opp to Mot to Takg@¢p870-8025 - www.ftrinc.net - (800) 921-5555

Exh. A

2 (Pages 5 to 8)

For The Record, Inc.

Page 3 of 9