UNITED STATES OF AMERiCA 

FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent 

) 

) 

) 

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Docket No. 9358 

· Honorable D. Michael Chappell 

NON-PARTY MOTION TO QUASH SUBPOENA DUCF..S TECUM 

Pursuant to 16 C.F.R. § 3.34 and Rule 3.34(c) ofthe Rules ofPractice for Adjudicative 

Proceedings before the United States F~deral Trade Commission, Bio-Tee Environmental, LLC 

(''Bio-Tee"), a non-party to this proceeding, files the following Motion to Quash and/or Limit 

Subpoena. 

L INTRODUCTION 

On February 14, 2014, Bio-Tec was served with a Subpoena Duces Tecum issued 

February 13, 2014 at the behest of Respondent ECM BioFilms, Inc. ("ECMj. (A copy of the 

Subpoena is attached as Exhibit 1 ). 

The Subpoena calls for the search of eight years of records (including elec1ronically 

stored records) from January 1, 2006 to the present and the production of any records which even 

mention "ECM", its principal, or its product name, among other things. Such a request of a non-

· party might potentially involve tens of thousands of records, all to what end? The apparent claim 

of the FTC is that ECM's Product does not work, or does not work as ECM has claimed. ECM, 

as the owner of the product most certainly has in its possession and from its testing reports and 

partners, test documents which demonstrate the efficacy of its products and substantiate its 

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representations. It is indeed curious, and suspect, that ECM is attempting to validate its :product 

claims based on records of its competitor. Furthermore, ECM already has Bio-Tec's copyright 

protected test results as shown by the cease and desist letter from its counsel to ECM (Exhibit 

2), yet is apparently requesting production of such records from Bio-Tec in, 4(a)-(d). The 

Subpoena should be quashed in its entirety, or at least should be limited in several significant 

respects. 

Bio-Tee moves to quash or limit the Subpoena on three main grounds. First, the 

Subpoena is overly broad and unduly burdensome; seeks materials which are neither relevant nor 

reasoD.ably calculated to lead to the discovery of admissible evidence; and requests records 

already in Respondent's possession. Second, much of the requested documents are trade secret 

protected, confidential and proprietary records and therefore should be protected from discovery, 

particularly from its competitor, ECM. Third, assuming even that the scope of the Subpoena was 

manageable, and the responsive documents were discovery relevant and not privileged, the 

timing of the Subpoena and the short time frame for response make compliance impossible. 

Additional time to respond was requested, but denied. 

ll. ARGUMENT 

A. Authority and General Objections to Subpoena. 

First, and importantly, Bio-Tec is not a party to this proceeding, and has no direct 

interest in its outcome. The Subpoena would be burdensome even if issued against a party. 

Because it is issued against a non-party. it is unreasonably burdensome, and should be either 

quashed in its entirety or dramatically limited. 

The FTC's Rules ofPractice and relevant federal regulations provide that "[p]arties may 

obtain discovery to the extent that it may be reasonably expected to yield information relevant to 

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the allegations of the complaint, to the proposed relief, or to the defenses of any respondent." 

FTC Rule of Practice 3.31(c)(1); 16 C.P.R. § 3.31(c)(1). Further, the Administrative Law Judge 

may limit the use of discovery if he determined that: 

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

cumulative or duplicative, or is obtainable from some other source that is 

more convenient, less burdensome, or less expensive; 

(ii) The party seeking discovery has had ample opportunity by discovery 

in the action to obtain the information sought; or 

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

party outweighs its likely benefit. 

FTC Rule of Practice 3.31{c)(2); 16 C.P.R. § 3.31(c)(2).Like a federal court, an 

Administrative Law Judge in an FTC proceeding should quash or limit any subpoena that is 

unduly burdensome or requires the disclosure of privileged or confidential and proprietary 

information, or information rising to the level of trade secrets. 16 C.F .R. § 3.31( c )(1 )(iii)(use of 

subpoena and other discovery methods "shall be limited by the Administrative Law Judge" 

where the ''burden and expense of the proposed discovery outweigh its likely benefif'); 16 

C.F.R. § 3.31 ( c )(2) (authorizing Administrative Law Judge to "enter a protective order denying 

or limiting discovery to preserve" a privilege); Fed. R. Civ. P. 45(c)(3) (a court "shall quash or 

modify the subpoena if it ... requires disclosure of privileged or other protected matter ... [or] 

subjects a person to undue burden"). Moreover, an Administrative Law Judge has the power to 

modify the subpoena and limit the scope of permissible discovery. 16 C.F.R. § 3.31(d)(l) 

(authorizing Administrative Law Judge to "deny discovery or make any order which justice 

requires to protect a party or other person from annoyance, embarrassment, oppression, or undue 

burden or expense"); see also Fed. R. Civ. P. 26(c) (court may grant a protective order to protect 

a party from annoyance, embarrassment, oppression, or undue burden or expense.) See also 

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Murphy v. Deloitte & Touche Group Ins. Plan, 619 F. 3d 1151, 1163 (lOth Cir., 2010)(discovery 

has "never been a license to engage in an unwieldy, burdensome and speculative fishing 

expedition.''). 

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Information is not discoverable if it is not relevant. Fed. R. Civ. P. 26(b)(1). Fmther I 

"discovery in Commission adjudicatory proceedings under Part 3 of the Commission's Rules is 1 

limited to matters that are relevant to the allegations of the Commission's complaint, to the relief 

proposed therein, or to the Respondents' defenses, none of which is at issue in this Discovery I 

Motion. See 16 C.F.R. 93.31." 

Further, the requests are drafted so broadly as to render compliance nearly impossible. 

For example, Request No. 1 seeks all documents "concerning" ECM which is "defined in its 

broadest sense allowable under FTC Rules ... " and " ... considered to be synonymous with 

regardirig, relating to, mentioning, discussing, referencing, implicating, explaining or about the 

documents subject to any and all individual requests in this Subpoena ... " (See :fn. 2, p. 3). This 

expansive definition of "concerning, which is imported into Requests 4 and 5 as well, seems to 

demand that documents be scrutinized to determine if a record is "about" some other request. 

Discovery request are overbroad, even if some responsive information is conceivably relevant, 

when only a fraction of the millions of documents requested are relevant. Nugget Hydroelectric 

L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992). 

In order to comply with these requests, Bio-Tee would be required to search through 

potentially a mountain of materials covering an eight year period, to determine if a record 

"concerns" ECM in some possible way (fn. 2 of Subpoena) and to review the documents for 

responsiveness and privilege, create a comprehensive privilege log, and comply with the lengthy 

instructions contained in Respondents' Subpoena regarding production. These efforts would 

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require significant resources from Bio-Tec and would disrupt its normal business operations. 

Responding to these requests is an unreasonable and monumental undertaking that could not be 

completed within the time allotted, if at all. Accordingly, the burden and expense required to 

comply with Respondents' Subpoena far outweighs any benefit that Respondents could hope to 

obtain, particularly in view of Respondent's responsibility to provide its proof of product 

efficacy. 

For these reasons, Bio-Tee respectfully requests that Respondents' Subpoena be quashed 

in its entirety. 

m .. RESPONSES AND OBJECTIONS TO DOCUMENT REQUESTS 

Bio-Tee incorporates by reference the arguments made above its Motion to Quash 

Subpoena Duces Tecum. In addition, Bio-Tee hereby adopts and incorporates by reference the 

following General Objections into each of its specific objections to Respondents' Subpoena. 

GENERAL OBJECTIONS 

1. Bio- Tee objects to Respondents' Subpoena to the extent that it seeks to impose 

obligations on Bio-Tec that exceed or modify the requirements of the FTC's Rules ofPractice, 

the FTC's governing regulations, and other applicable rules of procedure. 

2. Bio-Tee objects to Respondents' Subpoena on the grounds that it is overbroad and 

seeks the production of documents that are neither relevant to the subject matter of this 

proceeding, nor reasonably calculated to yield information relevant to the allegations of the 

complaint, to the proposed relief, or to the defenses of Respondent. 

3. Bio-Tee objects to Respondents' Subpoena on the grounds that it is duplicative 

and harassing because the Sl!-bpoena seeks information and documents that are or should be in 

Respondents' possession, custody, or control. 

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· 4. Bio-Tee objects to Respondents' Subpoena to the extent it seeks documents that 

are protected by the attorney-client privilege, work product doctrine, the common interest 

privilege, and other applicable privileges, immunities, and duties of confidentiality belonging to 

Bio-Tec. 

5. Bio-Tee objects to Respondents' Subpoena on the grounds that it seeks 

information or documents that constitute, contain, or refer to trade secrets or other confidential 

business and commercial information of Bio-Tee, including commercially sensitive information. 

Bio-Tec further objects to Respondents' Subpoena to the extent that it seeks information or 

documents that are subject to confidentiality provisions or obligations between Bio-Tee and 

others that may not be disclosed without notice to/or consent of the parties to such contracts or 

otherwise. 

Specific Objections to Document Request 

Bio-Tee asserts the following specific objections to the categories of documents the 

Subpoena requires to be produced: 

1. All documents concerning ECM BioFilms, Inc. 

Bio-Tec incorporates the objections stated above, including its objection to the essentially 

unlimited scope of the definition of "concerning" encrypted into this request for production 

spanning an eight year time period. Clearly, the request fails to identify with any reasonable 

particularity the items requested and undoubtedly includes records already in the possession of 

ECM. Bio-Tee does not have any ECM documents but identifies the cease and desist letter from 

Bio-Tec's counsel to ECM, requesting that it desist from using Bio-Tec protected information in 

the sale and representation of ECM' s product. Bio-Tee further objects that the requested 

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discovery is overly broad. seeks information that is neither relevant nor reasonably calculated to 

lead to the discovery of relevant evidence, is unduly burdensome, harassing and oppressive. 

2. All correspondence between Bio-Tee Environmental and any employee, 

representative, or distributor of ECM BioFilms, Inc. 

Bio-Tec incorporates the objections as stated above. Additionally, ECM should have in 

its possession, custody or control the correspondence and communications referred to and 

therefore the requested information is obtainable from sources which are less expensive and 

burdensome. Bio-Tee specifically references the cease and desist letter attached as an exhibit in 

response to this request. Bio-Tec further objects that the requested discovery is overly broad, 

seeks information that is neither relevant nor reasonably calculated to lead to the discovery of 

relevant evidence, is unduly burdensome, harassing and oppressive. 

3. All documents sent or received by Bio-Tee Environmental making reference 

to ECM BioFilms, Robert Sinclair, or ECM BioFilms Master Batch Pellets. 

Bio-Tee incorporates the objections stated above and further states that the request is 

overly broad, seeks information that is neither relevant nor reasonably calculated to lead to the 

discovery of relevant evidence, is unduly burd(:nsome, harassing and oppressive. This request 

also seeks information which is privileged and protected from disclosure pursuant to the 

privileges asserted in paragraphs 4 and 5, above. 

4. All documents concerning any test, imaging work, or report (including any 

and all notes and raw data) performed or written for products containing the ECM 

additive, including but not limited to: 

a. SEM Imaging of EPS samples completed for Bio-Tee Environmental 

(3/6/07) 

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b. SEM Imaging of green PET bottles completed for Bio-Tee Environmental 

(2/8/07} 

c. SEM imaging of bubble wrap completed for Bio-Tec Environmental 

(12/12/06) 

d. SEM imaging of PVC samples completed for Bio-Tec Environmental 

(3/5/07} 

The specifically identified items (a~d) are the subject of the cease and desist letter 

attached as Exhibit 2. It is therefore apparent that ECM has the items requested, all of which 

are protected intellectual property of Bio-Tee. Bio-Tee incorporates the objections stated 

above, including as stated in paragraphs 4 and 5, and further states that the requested 

information is neither relevant nor reasonably calculated to lead to the discovery of relevant 

evidence, is unduly burdensome, harassing and oppressive. 

5. All documents concerning any test or report (including any and all notes and 

raw data) performed or written about a product or substance containing any product of 

ECM BioFilms, Inc., including "ECM Masterbatch Pellets." · 

Bio-Tee incorporates the objections as stated above. Bio-Tee further objects that the 

requested discovery is overly broad, seeks information that is neither relevant nor reasonably 

calculated to lead to the discovery of relevant evidence, is unduly burdensome, harassing and 

oppressive, and further asserts that such documents, if any, are protected by the privileges 

asserted in paragraphs 4 and 5, above. 

6. All correspondence between Bio-Tee Environmental and any employee or 

representative or officer of the University of New Mexico. 

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Bio-Tec incorporates the objections as stated above. Bio-Tec further objects that the 

requested discovery is overly broad, seeks information that is neither relevant nor reasonably 

calculated to lead to the discovery of relevant evidence, is unduly burdensome, harassing and 

oppressive, and further asserts that such documents, if any, are protected by the privileges 

asserted in paragraphs 4 and 5, above. 

7. All correspondence between Bio-Tec Environmental and any member, 

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

Bio-Tec incorporates the objections as stated above. Bio-Tec further objects that the 

requested discovery is overly broad, seeks information that is neither relevant nor reasonably 

calculated to lead to the discovery of relevant evidence, is unduly burdensome, harassing and 

oppressive. Additionally, the information, if any, submitted by Bio-Tec to the FTC contain and 

constitute trade secrets and highly confidential information of BioTec, and as such submitted in accordance with 15 U.S.C. § 57B-2(c) and (f). Such information, if 

any, was submitted in reliance on the request that all such information and communications be 

treated as confidential and exempt from disclosure, and Bio-Tee did not consent to the disclosure 

of such information. Bio-Tee asserts the privileges and objections stated in paragraphs 4 and 5 

above. 

The Existing Protective Order Does Not Adequately Protect Bio-Tee 

While Bio-Tee respectfully requests that the Subpoena be quashed, in the event it is 

required to search for records, neither the Subpoena nor the protective order address the 

payment of costs associated with engaging in such an expansive search. As a non-party to these 

proceedings, Bio-Tee is entitled to obtain all of its reasonable costs, expenses and attorneys' 

fees in addressing this subpoena In the event Bio-Tee is required to produce information 

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responsive to the Subpoena, even ~its scope is narrowed considerably, the cost of production 

will be substantial, requiring the work of numerous employees reviewing, organizing, and 

copying thousands and thousands of documents. Further, Bio-Tee has incurred an~ will 

continue to incur legal expenses contesting the scope of the Subpoena. Under Fed. R. Civ. P. 

45, the issue is whether the subpoena imposes expenses on a non-party, and if so, whether those 

expenses are significant. 

m. CONCLUSION 

For the foregoing reasons, non-party Bio-Tee respectfully requests that the 

Administrative Law Judge quash Respondent's Subpoena in its entirety. If the Subpoena is not 

quashed in its entirety (1) Bio-Tec should not be required to produce documents over an eight 

year period; (2) the overly broad document requests should be narrowed considerably; (3) BioTec should not be required to produce confidential information, but if required to do so, only 

under a narrowly-drawn protective order; and (4) ECM should reimburse Bio-Tec's expenses 

related to responding to the Subpoena. 

IV. CERTIFICATE OF CONFERENCE 

Pursuant to FTC Rule of Practice 3 .34( c) and 16 C.F .R. § 3 .34( c), Bio-Tee hereby 

certifies that it has conferred with counsel for Respondent by phone in an attempt to resolve by 

agreement the issues raised herein. On Monday, February 24, 2014, undersigned counsel for 

Bio-Tee and Lou Caputo, counsel for Respondent, conferred by telephone in an attempt to 

resolve the issues regarding Respondent's Subpoena. Despite this effort, counsel have been 

unable to reach agreement on the issues. 

WHEREFORE, PREMISES CONSIDERED, Bio-Tec respectfully requests the 

Subpoena Duces Tecum be quashed and/or limited, and that it be awarded its reasonable 

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attorney's fees and costs, as well as such other relief: both legal and equitable, to which it may 

show itself justly entitled. 

Dated: February 24, 2014 

11 

. eder 

Attorney for Non-Party, Bio-Tee 

Environmental, LLC 

201 ThirdStreetNW, Ste 1500 

Albuquerque, NM 87102 

(505) 767-0577 

Geoff@fijlaw.com 
CERTIFICATE OF SERVICE 

I hereby certify that on February 24, 2014, I caused a true and copy of the foregoing to be 

served as follows: 

One electronic copy to Counsel for Respondent: 

Lou Caputo 

Emord & Associates 

3210 S. Gilbert Rd., Ste 4 

Chandler, AZ 85286 

LCaputo@emord.com 

On February 28, 2014, I caused a true copy through the FTC's e-filing system to the 

Office of the Secretary: 

'DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.com 

On February 28,2014, one electronic copy to the Office of the Administrative Law 

. Judge: 

The Honorable D. Michael Chappel 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-11 0 

Washington, DC 20580 

Email: oalj@ftc.com 

I further certify that I retain a paper copy of the signed original of the foregoing 

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

Commissio=n'_...: 

12 
1. 

. General Counsel and/or Executive for 

·s1o. Tee EnvirQnmenta!, t,.LC 

. 7.009. Prospect .Ave ~~. Suite 202 

Albuquerque, NM 871 fO 

'3. 

Emord & Associates, P~C . 

. 3210 S. Gilbert Road, Suite· 4 

Chandler, 1\Z. 85286 February 28, 2014, 5:0Q PM EST . 

. e,.,...,..,~. 

In the matter. of ECM BIOFilms. Inc., Docket No. 9358. • • 1. • • • • 

. 7.: ~TeR!ALTo'ee.i>~~ ' , ·. · · 

; S~e· A~act.~d Schedul~ A for description of all documents and material~. 

a. ADMif.iiST'AA~!;Aw.JUDCE .11 •. ~PP.li$r{~ING ~~ ·. . .. 

. Chief AdministratiVe Law Judge . Jon·athan W. Emord, Peter Arh'angetsky, Lou 

· D. Michael C~ppell Caputo . . 

-Federal Trade commission Emord &-Associates, P.C. fQr ~espot•~ent . 

. W~~~~~cW;.o.q.,: ZO~ · :ECM Bi.oFilms, Inc, .. : 

. =- :~ J.Ni'~Rlf~NS. .. .. ; ... · _.- :_ .. >·· 

" 

... !~· .:. I ___.__,._A _ 

.· , .. 
SCHEDULE "A, TO SUBPOENA DUCES. TECUM DIRECT.ED TO 

BIOMTEC ENVIRONMENTAL, LLC 

INSTRUCTIONS 

A. Unless otherwi~e specified, the time·.period covered by a numbered. request shall.be limited to 

the time _perlod: extending from January 1, 2006 until the present date, unless differently 

stated :therein. 

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

Ernord &.Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandle~;, AZ 8$286 

C. .A complete· copy of each doc:u.ment sht>uld be submitted even if only· a portj"pn of thed,opum!o'nt is withtn the terms of the numbered requ~t The document shaij not be ~it~. cut 

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

appendices_,_ "tables· or other attachments. 

D. All infonnation submitted shall be clearly and preCisely identified as to the numbered 

request(s) to w:pich 1t is-responsive; Pages in the subm"ission sl'io.uld. be. numbered 

corisecuti:\l'ely, ;md· eaGh _page. should. be marked with a uniqpe "Bates" doeumen.t tracking 

nuniber. 

E. Pocumen~ covered bytbese numberec! reques~ 11re those. which are in your: poss.13ssion .or, 

1mder your actual or constructive custody or·control1 whe.thei'·or not such -docmnents· were 

~:e"eiv~d from or dissetninated to any otht;r p¢rson br entity, including attorn~y::;, .accot:JiJ.tants; 

d~rectors, offic~rs and employees. · 

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

mor.e than once. However,. your response. sliould ·in~icate,. for each ~ocgment submitted, each 

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

nimiber if the doeuments(s) were so numbered when submitted or by ~uthor anq subjeCt 

matter-if not so. n:umbered. 

G, If any ·of the documentary materials requested :jn these. mimbeted requests are available in 

machbte-readable form (such .as flc;~ppy or hard -d,isk$, -drums; core storage, magnetic tapes or 

ppn~h ~a:rds), sta~-the·form in which it i~ available and des.cribe the type of computer erother machinery required to reaa.the docwnenfs involved. Iftl;le in:form.~tion ~q~este.d is 

stored in aco~puteror a file orrecord generated by a computer, indicate whether:youhave· 

an exiSting px:ogram. that wili print the information-In readable fQrm ancJ. state the name, title, 

business address and telephone number-of each .~erson who is :famili;u-with the pro~. 

H. .AU obJections to the8e numbered reque5ts,. or to ·any iil.dividual request, must· be raise9, in tiw 

initial respOnse.or other-Wise Waived .. 
I. The Federal Trade Commission's Rules ofPracticr:,: describes withholding requested material 

respon.sive to a su~poena under Rule 3.38A For your convenience, Rule 3.38A ·states: 

(a) Any person withholding material responsive to a subpoena 

iS!\I,led pursuant to §3.34 or §3.36, written interrogatories.req).lested 

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

§3..3 7, or any other request for the production of materials under 

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

{at~t: than the date set for production of the material. Sucb person 

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

submit, together with such claim, a schedule which describes thf; 

nature. of the documents, commun·lcations, or tangible things not 

produc;:ed or disclosed - and does so in a manner that, withoqt 

r~vealing :infonnation itself privileged or protected, will enable 

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

any material outside the scppe of the duty to s~rch set forth in 

§3.:H(c){2) except to the extent that the Administtative Law Judge 

has authorized· additional discovery as prov.ided in that paragraph. 

(b) A person withholding material for reas·ons described ·in 

§3.38A(a) shall comply· with the requirements ofthat subsection in 

il~u of tiling amotion to limit or quash compulsory process. 

J. The Fed~ral.Trade-Commission•s Rules ofPractice clestriQes motions to qua~h i}n_dlor limit 

suJlpof;Jlas un,d~r.Rule 3.34(c). For your gonvenienqe, Rule 3.34-st;a~es in T«;ll.ev~t part: 

(~) Motions to quash,· limitation on subpoenas. Any motion by the 

subject of a subpoena to lim·it or quash the subpoena shall be fit~ 

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

conipliahce therewith. Such motions shall set forth ·all assertions of 

privilege or other. factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

.!!upjmrting documentation, and shaU inClude the statement required· 

by :§3.22(g'). Nothing in paragraph~ .(l:l) and (b) of this section 

authoriZes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36'. 

K. :Some docu.n'lents· that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D .. Michael Chappell drdert:d 

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

the Protective Order so as to inform third parties of his. her, or its rights. See AU .Prot(:ctive. 

Or.der at 2, ~4. Accordjngly, a copy of the P~otective Order is attached with this subpoena. 

L. If·any requested material is withheld based on a claim of privilege, submit. together· with such 

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

the item's typ~.; title, specific subject matter· and date; (b) the nam~, addresses, positions and 

or-ganizations of all authors or recipients of the item; and (c) the specific gtoi.mds.for 

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

non·privileged portions of the document must be. submitted. 

DESCR:IPTION OF DOCUMENTS REQUESTED 

Please produce 'the ori·ginal or copies of the following decuments (the terin "documents,. 

shall include all records, books of.account, workSheets; checks, instructions, specifications~ 

manuals, reports, .books, periodicals, pamphlets, publications, taw and refined data", tnemoranda:, 

graphs, drawings, notes~ lab books., advertisements, list. studies, meeting minut~, working 

papers; transcript!!, magnetic tapes or discs; punch cards; computer printouts, letters, 

cprrespon~ence 1

, agree~ents, drafts of agreements, tei~gr~ms, email, drafts, proposals, employee 

records, customer records, log files recommendations, and ·any other data recorde.d in readable· 

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

or ill any othet: aY made readable or retr.i()vable ):· 

1.. All documents concerQ,ing~· ECM BioFilms, hl4.1. 

2. Ail correspondence between Bio·Tec Environmental and any employee, 

representative, or distributor ofECM BioFilms, Inc. 

3. All documents .sent or received by Bio-Tec Environmental making reference to 

ECM BieFilms, Robert Sinclair, -or EC.M .Bi.oFilms Master Batt:h Pellets. 

1 l'he term "corresp9ndence'' is intended, us~c:l. and define.d in its .brQadest sense· 

allowable under the FTC Rules of Practice. Such term incl~de~ but is· not limited. to embrace 

em ails, documents appended tQ ~rnE!.Us, reports and !UJ.Y other written or. electronic ·doQu.ment of 

any kind that is communicated. fi:om the subpoena recipient or its agents to any ani;} ·an other 

persons. and entities. 

2

'The. term ·"concerning" is intended, used, and defined in its broadest ·sense a:llowable 

under the FTC Rules of Practice and should be considered to, b.e synonymous with .regarding, 

relating to, mentioning; discussing, referencing, implicating, explaining, or about·the documents· 

Subjectto any and all individual requests in this subpoena; 

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4. All documents concerni~g any .test,. imaging work, or·.report (inciudingany and all 

note·s and raw data} pe.tf'o.rni~d or written for products containin~ ~he EGM add~tive,. including, 

b:ut not. limited to: 

a. SEM Imaging ofEPS samples· completed for Bio-Tee Environmental (3/6/07) 

b. SEM Imaging of green PET bottles completed for Bio-Tee Environmental 

(2/8/07) 

c. SEM imaging of bubble wr.ap completed for Bio•Tec Environmental (12/12/0"6). 

d. SEM imaging of PVC ·Samples complete-d for Bjo-Tee Environmental (3/5/07)' 

5. All documents .concemin~ ~my test or reporHinclud4Ig any and all notes and raw 

data) peifonned or written about a product or substance contain ina- any product ofECM 

BioFilms, .Inc., including '~CM Masterbatch Pellets." 

$. All correspbnd~nce· bel;ween Bip-Tee En;Yironmental.and .. al;ly employee or 

representative'qr officer of the Un.iverl!ity ofN<:lW Mexico. 

7. All corresp9nd~nce between.Bio-TecEnvironmental:and arty member; employee, 

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

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF. DOCUMENTS 

If documents are delivered· by hand, overnight deliv.ery. service~ certified mail, or aiJ.Y other 

means your response sh~ll be ~e«:;9J;IlpaJ;Jied !>y an affidavit, executed by youth~ provides·: 

the names, addresses, posit1ons~ and otgan:iza:tio.ns of all petsons whose tiles 

were searched and all personS. who participated in or .superVised the collection 

of the documents:\ and. a brief description oftbe tiatu1·e of the work·that each 

person performed in connection with the collecting tbe doc"!.nnents. 

:3 '·~ocument'' and "documents" as use-d in this Attachment are· defined iii this.subpoenil's 

"Description of Documents Requested" section. 

4 
A statement that the search was complete and that responsive documents ate 

being produced. 

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

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

your regularly conducted business, whether it was your reg!Jlar practice to 

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

executive(s) and/or employees of Bio-Tee Environmental who h~ve 

knowledge of such matters, can authenticate the documents and. materials 

produced, and who can testifY to such matters. 

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

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

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

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

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

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

the documents on the d~e. of its destruction, Joss, or m.i~Iace!.1Jent. 

A declaration that states: 

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

is true and. corre.ct. 

.Executed on [dat~]. 

[Signature of party executing the declaration} 

Respectfully submitted. 

Is/ Jonathan W. Emard 

Jonathan W. Emqrd, Es·q. 

EMOR.i::> & ASSOCIATES. P .C. 

11808 WolfRune Lane 

Clifton. VA 20124 

}lh: 202-466-6937" 

Fx.: 202-466-6938 

Em: jemt>rd@emord.com: 

Counsel to: ECM BioFilrns, ln~. 

5 
/ 

UNITED STATES .O.F AMERICA 

FEDER:A:L TRADE·COMNUSSION 

OFFICE OF ADMlNISTR-ADVE·LAW.JUl)GES 

In the Matter of 

ECM 1;\ioFilms; Inc., 

a corpor.rtion, atso dfbf~. 

Envir-Qplastics }Jltemati(lpaj, 

Respondent. 

) 

) 

) 

). 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE. ORDER.GQVEltNlNt DISCOVERYMAIEIUAL 

ConunissiQn R~~ .3 •. 3.·1 (<0 states.: "In -or.der. to protect-the parties and third _pa~es 

against improper use and disqlosure qfcon~d~tial mfonn&ticm;t,h~ A~ati'V.e LaW 

Judge shall issue a protective order as set forth in the ap_pemlix 19 ~is ~.ec.tjon:'' 16 C..F .R 

§ 3_.3.l(d)r. ws~to. QQmmissipn Rule 33l(ti),. theprote.cti~eA:itaet$et fertlHn ~ 

appendix: tb :th~ 5eCtion i& !U~c~ verbatP.n as A~_cb:ment A. -~il.~· hereby 15s.ued. 

ORDmffiD: J>brr ~iL . D. Mic~~rc~u Chief Administrative Law.Juctge· 

Date: October.22,2013 
.Fot the PUTI>O~ of protecting the ~ts ofthe partiet and tfrird. parties in th!' 

·above-captioned matter against improper use and disclosure of confidential . .infonnation 

submitted or produced in cormection with this rna1ter: 

tr IS .HEREBY ORDERED·THAT this· ProteCtive Order Qo-vemfug 

Coo.frdential Mate+ial ("Protective Order'~) shall govern tfi.e ha:fii:llitlg. of all Discovery 

M~terial~ as heteafter defined. 

1; A.l!·IJS«i in. W$ Order, "confidential material" shalHcfe.r· fo. any document.oq>9n:iQn 

ithereoftbat-con~ p~ vi1eged, comp.eUtiv.ely sensitive-:information. ol!. sensitive personal 

iiiformation. "Sensitive perSonal information" shall r~fer to, but .shall qot be limited to, 

an individual's Social SecuritY number, taxpayer ide.ntification nut:ttber, fmancial account 

DlllJlb~ .. c.r::edltca+d or,debit card nlliDber, .drlYet's license numb.~ ~ta~~issue.d 

identification number. Jjassportnnmber, date ofbfrtb·(ot.berthan y~). and any sensitive 

h~alth infotmatiop. identifiable by individual, .such. as' an~vidual"sw.edica.hccords. 

"Docum~t .. shall refer .to any discov~able Writii).g-, recording, n:anscrfpt of o~ 

testimQDy, or el~tronically stored informationm:thepo~ssion of a party ora thlrd · "C'olD.IiliSsion~ shall refer to the Federal Trade Commissionf'.fl'C"), 91'~Y of its 

ploy~ ~C!Jlts, ~ttol.ll~ys,.aad all ether ~..rts acting on its bellalf, exctudingpers.ons 

retiiD.ea.as.ct>.nsultants or expertS forpmp~;of tbis proceeding,. 

2 .. AI1y dO:CUPJ.~t or.· porti~ ~f submitted lzy a l.'espondent .or:a;third ~during a 

Fed~ Trade Commission in'le$igation QJ: dQffng th~:.col.'frS'e Qflbis:Pl'O.ceeding ~ris 

en,titled to coilfideniiality tmder the Federai tmde Co.rxunissionA.ct; Qr any te_gulation, 

te~pr.etatiim, or- precedent cOm:ei1Jing.ljOcumf;l'lts in. the-poss~sion ofthe C~on, 

as well as lilly information taken from ~y portion of StiCh do<rtuneilt5 shall bc:~ted as 

confi(ienti.al material for pmposes of this Order. The-identity 9f a third party submitting 

sucli confi.den.tial·material shall also be treated as crurlidential materit,.l for the pmposes of 

thl.s' Qtder ~ere tlie su~tter has reqJJested such -c6nfidential'tr.eatment. 

3, .The parti~s '8Dd· any third parties, in complying '\lvi.th inf0II'Oal discQvery requests, 

displosure requirements, or discovery demands .iri this-p.toceedin,g rqay desig~We any 

rt$pc>nSive document or perti.on tQereof as confideRpal rnatetialt inelQdihg doq~nts 

·obtained by tbem from third parties pursuant to discov.ery or- as Otbexwise obtained. 

4. The-parties, in conducting discovecy 4-o~ third.partie.$, shall pri)'V:iQe· to each t~d 

p'arly a copy of tlUs Order so as to inform each such third party c:>fhls, her~ or itS.riglits 

h~. 

$, A clesign!ttioa of ronfidentiaJity shall constitute a representation i.Ji. gootHaitb ·and after 

careful dete~tion that the .lliateri.al is not reasonably bell~ 1(1 be alr;~y-inlhe 

ptiblic domain· ana that counsel ~aeves ma~eri~ so d~gnated constitutes 

-coruidentialmaterfal as detincd in Parii8I'lU!U 1 of1hls O.rd'er. 

2 
6. Material may be designated as confidential by .placing on or affudng to the document 

.containing such material (in such manner as will not interfere wl.th the.legil>iiity thereof), 

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

folder or·box, the designation "CONFIDENTIAL-FTC Docket No. 93~ B" or ~y other 

appr9priate notice that identifies this pro~eding, together witQ. an:indicatiort ofthe 

portion or. portions of the document considered to be confidential.m!lterial. Co@.(j.~;;ntial 

information contained in electronic documents. may also be desigm1ted as f<Onfid~ntial by 

plac.ing the desi~.ation "CONFIDENTIAL- FTC Do.cketNo. 9358·;, or arty other · 

:appropriate nQtice that i~entifies this pro'Ceedtiig;. on the face of the CD or DVD or other 

m,edhn;n on which the doc:um.ent is produced. Masked or otherwise r~da~t.ed.copie$ of 

docU:ments may be produt<ed where the portions deleted.contain.priv.ileged matter, 

provided 'that the copy produced shall indicate at the ap.:proptiate point ·tb.at pq;rtioi:is have 

been deleted and the reasons therefor. 

7. ·Confidential material shall be disclosed only to: (a} the Ad.mjnistrativeLaw Judge 

presiding over this proceeding, persormel assisting the Administrative .Law Judge~ the 

Commission .and it$ employees; and pQt-SOJ)llel I'($ined by the Cb'll).IIlissipn as eXperts or 

consultants for :this,-proc-eeding; (b) judges and other court·personnel of any court ha,ving 

jurisdiction over any appellate proceedings involving this matter; .(c) outside co tinsel of 

:recc;~r.d .for any respondent, the.\r ~soci~te_d at~l)mey~ a,nd other.et;n:plqyees Q:('~beit iaw 

·firm(s), ptovided they are not employees of a ..respondent;. (d) anyon,e,retaine(i -to:.assist 

outsid~.counsel in the. prl:lpatation or hearing of this pro~eeding including· oon.Sul.tants, 

:pwvided they are not a:ffillated. in·any W!i-Y with ~respondent ~d have sign~4 an 

agreement to abide. by the .ter.tliS of the protective arder; .and (e} any witness or deponent 

who ma,y hav¢ authored or received the. iiiformatkm in question. 

8 .. Disclos.ure of confidential material to any person described in Paragraph 7 <;>f'this 

Order s~.all be only for the pruposes of the preparation and hearing. of this:.pro·ceeding, or 

a,ny· appeal therefi'om~ ~d for no other puq>ose whatsoever; provided, however, that the 

Commission may,1llbject to taking appropriate steps· to preserve the confidentiality of 

such m~terial, use or dlsclose confidential material as provided by its Rules· ot.::Practice; 

sections 6(f) and 21 of the Fedenj.]. T.rade Commission Act; o:r any other legal·oblig!'ttion 

'jm{:l'osed ilpon the Co:tnmission. 

9.1n the event tnat any confidential material is contained. in any pl~aEling, .m..9tion,. exJribit 

or .other .paper-:filed or to be filed with the Secretary of the Con:i!nlssion, the Secretary 

shall be .so informed by the Party filing such papers, B1ld. ~uch pl;l.pers shall be::filed iri. 

camera. To the extent that such matel':iai was originaUy submitted by a third party, the 

pru;ty in~luding the materials in its papers shall immediately notify the submitter ofs.uch 

·hiclusion. Confidential material contained in the papers shall con~~ to have in camera 

tre.atment until fur.ther o.rder of the Admi:ilistrati'Ve= Law Judge, provided, however, tb.at 

Sl:JCh papers. nmy be. furnished to persons or entities -who may receive· confide:iitieil 

.material plirstiant to Paragraphs 7 or 8. Upon .or aftey f.t.llJ;lg a.qy paper·comah:iing 

co®c;lential mateyial, the filing pmy shall file .on the.-publi~ record a. duplicate copy of 

the papedhat doe~ not reveal con.fid~ntial material. Further, iffue protection for. any 

·suclbnaterial expires, a party may file on the public record a dupiicate copy which also 

conurins· the formerly protected material. 

3 
10. If counsel pl.ans to .intrpd11ce into evidence.at the ·hea$g, any dqcument 01; transcript 

containing ~onfidential material produced by another parfy or by a third pa,rty, they sJ:iall 

provide advance ·notice to the·.other party or third party for purposes· of allo-wing that 

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

that party Wishes in camera treati:r.ient for the docjUneiit or ·transptipt,.. tlie ·party shall :file 

au app~:oprie,te ~otion with ~ Adrnjtiistrative Law judge wit:bin-.5 days after. it receives 

such notice. Except where· suqh an .order is··granted; all·doctunefits· and· transcripts shall 

be patt ofthe public tecord. Where. fn ·cam ira tt.eatnientis granted •. a 4u.P.J.icate cppy Qf 

su,ch .doc'illnent or transcript with the cop:fid.ential materi~l de.l¢ted there~Qm IQay be 

placed on ·the public record. 

11. If. any party receives a discovery :request :in:any iilvestig~tion or in any otliet 

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

anothdr party or thitd party, the r~cipi~nt of the discov~ry request shall promptly 1;1oticy 

the suqmitter ofreceipt ·of such request. Unl~ a shorter time is· map:qa,t~d ·by .an order of 

a court, such notification shall be in writiQg ai;ld :be received by the s-qbmitter at least 1 0 

business days befere production. mid Shall include a copy of'this ;I»rotective Order and·~. 

:cover l~tt~r that. will apprise. th~ sul:>n:iitt~r ofi~ ri.ght.s :herc::tmd~r .. Nothing her~ln shall be 

construed as requiring the recipient of the discovery re.quest or anyone.·else covered ·by 

this· O:td~r to cl:iSllenge or appeal.a:ny o:,:der r~qqiring production, of!;lpniide~~al IP.ater.ii!.,l, 

t9 sul?ject itself to ~y penalties for non-eompliance With any such Qr.der, or to se~k any. 

relieffrom·i:he Adnlfuistrative Law Ju4ge or the C:o.mi)lissiC?n• 1he ~cipi¢nt shall not 

'Oppose ilie submitter's ~:fforts tO' ~balle~ge th~·:c&sdosure ·of coritltlen.tial materi~l. In_ 

addition, notl:Un,g h~rein ·shalt limit the ~pplicability of Ruie 4.11 ( e} of the .commission's. 

Rules of Practice, 16 CPR 4.1l(e), to disccivery I'equests··iil another proceedip.gtliatare 

dixwted to the Cortmrlssi'on. 

1.2 •. At the titne that any consultant or other p:erson retained to assist counseLi.r;t the 

preparation of this· action concludes participation in the action, such. person sluill return to 

counsel all copies o(-documents or portions'th~reof designated con:filiential tJiat are in the 

possession o'fsucb person, together wiJ;h all note$, memoranda or otQer pap~s con~ini:qg 

confidential· infeirmation. At the c.onelusion ofthis preceeditlg, intlliditigihe .. exh~~on 

QfjuQ.ieial.review,~:tb.e parti~ shall return docmnents obtaine!,i in this action to tb.eh 

submitters, provided,.hawever:. that the·Cornmission-'s obligation to re.tum ciocqzp.e~ts 

shall b.e. govern~ by the pro:visions ofRufe· 4.,12 of the Rule.s of Practice, 1.6 CFR.4.12. 

i3. The provisions ofthis Protective. Order, insofar as they restri~t the conununication 

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

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

oft,his proceeding. 

4 

\ 

. I 
I . 

- f., . 

,.) A>:>(\ FI~E COPY. P~coCKMvEKS,P.c. . ,- ~ . INTEU.ECfUAL PROPERTY LAW SERVICES . r ~'(!! TE<ENOLOGY COMMERCIALJZATIN 1.,.-. · · . ... , ... ~ 

US. and lntematiah~Jnte tual Property 

Full-5ervice lnteUectuatProperty Semces 

Patents, Trademarks and Copyrights 

Sea.rdws and Prosecution 

Deborah A. Peac:od;, P.B. t.2,3 

JeHreyD. Myers t.U 

Janeen Vilven-Doggett. Ph.D. 1.2 

Roger E. Michener, Ph.D 2.f.5.6 

Philip D. Askenazy, Ph.D. I 

&glslaed Palent Agent 

Justin R. JaCkson 1.2 

Hilary A. Nosldn, Ph-0.1.2.4 

Samantha A. Updegraff 1,1 

Diane E. Albert, .Ph.D. a 

Stephen A. Slasber, Ot Counselt.2 

Steve M. Mc:Luy, Of Counsel L1 

Robert Sinclair 

ECM Bio:film~ Inc. 

1 Victoria Square, Suite 304 

Painesville, Ohio 44077 U.S.A 

February 23, 2010 

VIA FED EX 

Biotechnology Law 

Computer anctrntemet taw 

Art and Entertainment Law 

Trade Secreta and PolicieS 

:{ntellec:tual Property Litigation 

Licensing IIIlli Technology Commen:ialization 

JnteDec:tual Property and Business Strategy 

Corporate and Commetda1 TransactiDDs 

Ventute Capital, Securities and Due D"'gence 

Re:. Our Oient: Blo-Tee Eavtronmental, LLC ("Bio-Tec") 

Bio-Tec Copyrights 

Dear Mr. $inclair: 

We represent Bio-Tec in copyright and related intellectual property matters. Our client · 

has recently discovered that ECM Biofilms, Inc. (''ECM Biofilms") is passing off as its own. 

the University of New Mexico SEM imaging of various plastic products reports ("reports") tbat 

are owned by Bio-Tec. ECM Biofilms is sending Bio-Tee's reports to potential customers to 

market its own product. 

Co.pyrj!Wts 

The unauthorized use ofBio-Tec's reports constitutes copyright infringement under 17 

U.S.C. § 501 et seq. Our c~ient is entiUed to recover damages against ECM Biofilms based on 

its infrlngement·of our client's copyrights for the reports and-SEM photos. 

False Statements 

Distributing the reports as if they were owned by and.performed for ECM Biofilms is 

misleading to potential customers. It is clear that this false representation is intended to {and 

actually does) confuse and misdirect ~tomers St!ekingproducts based on the reports. Your 

use of the reports is unlawful and constitutes unfair competition, ftaud, false advertising, 

misrepresentation, interference with contra~ relations, business libel, and deception. . . 

Jllqlatlnd u.s. p-lrTtaclomakOili<o 

2Aclmllloc!NewMedco8or • 

3Aclmllloc! Com.to e.. 4 Ao1Jnlttecl W~ D.C Bar 

SAdlnllloc! ,_.,.,-.,a .. 

'AdJollled Now Yoclclll!dfolew Jmey 8m 'I Addlleclln ...... ....t Ohio B.,. 

Jio&blendU.S. Pa-&T~Oilloe(.......,fluMT) 

EXHIBIT 

:s 

201 Third Stteet NW • Suite 1340 ~-------'ephone (505) 998-1500 Albuqueique, New Mexico 87102-3368 Fax: (5(5) 2&2542 

. Po~ Olflce Box 26927 InloOPn cockt.aw.com 

Albuqu~NewM~87125-6927 www.Peacod<Law.ann 
I· . 

Robert Sinclair 

·February 23, 2010 

Page2 

) 

• I 

Deceptive Trade Practices 

We are aware that ECM Biofilms is representing to customers that ECM Bioftlms' 

Master Batch additive is the same as.Bio-Tec's EcoPnreTM additive. This statement is false and 

deceptive. The EcoPureT!'f additive is a proprietary fonnulation developed for Bio-Tee. The 

two additives are not the s~e and are not equivalent. Further, ECM Biofilms is confusing 

customers by stating that the Bio-Tec's reports also describe the Master Batch additive sfnce 

the two additives are the same. Confusing customers by stating that the products are the same, 

when they are not, and then representing to customers that the Bio-Tec reports also apply to the 

Master Batch ~ddiqve, whi~ they do not, constitutes deceptive trade practice. 

We believe tbat our client bas an exceptionally strong case against you. Accordingly, 

we demand that you immediately take the following steps: · 

(1) 

(2) 

possession. 

Imm~ately discontinue any use of the reports. 

Return to Bio-Tec all Bio-Tee reports in yqur p<}ssession or in ECM Biofihn•s I 

(3) Pay to our client all sales you have made on all products that have been sold at 

least in part because of the reports. 

If you will Jiot immediately comply with the above, or take substantial steps toward 

such compliance as may be agreed upon, we will not hesitate to advise our client to file suit 

against you. 

We ask that you respond to this Jetter by March 5, 2010. · 

., 

cc: Bio-Tec Environmental,. LLC 

Very truly yours, 

aneen Vllven~Doggett, PhD. 

Direct Une: (505) 998-6134 

&mail: jvilven@peacocklaw.com 

G:\MlUENTS\Bio-Tec Envtronrnental, UC\AGTS\ECM Bloftlm8\C&O ECM E!IOIIJma 022310.110e 
.. 

.. 

From: OrigiliO: ONMA (505) 998-8147 

Lori Ht$$ilger 

Pem:ack Uyn 

201 Thlrcl street NW 

Sua1348 

Albuquarqa., NM Bl18Z 

SHIP TO: (440)350-1400 Bill SENDER 

Robert Sinclair 

ECM Blofllms,lnc. 

1 VICTORIA PL STE 304 

PAINESVILLE. OH 44077 

Ref# 32560-1019 

Invoice# 

PO# 

Dept# 

TRK# 102011 7932 9608 2432 

SJLNNA 

- AftM printing this label: 1. Use the 'Prfnl' button. on lhls page to print your label to your laser or Inkjet prinler. 

·-·-) Page lof2 .. 

THO - 25 FEB A2 

** 2DAY ** 

44077 

OH-US 

CLE 

2. Fold the printed page along ·the h~ nne. 3. Place label In shipping pouch and affix It to yow shipment so that the barcode polllon of the label can be read and scanned. 

Wamlng: Use only the printed original ~I for shipping. Using a photocopy ol this label for shipping purposes Is fraudulent and could 

result in addllional billing charges, along Wllh the cancellation of your FedEle account llllllber. 

Use ol thla system consiiiUiliG your agreemanl10 IIlii COIVlce conclltlons In 1M currvnt FedEle SeMce Guide, available on fadex.oom.FedEx wll nor ba 

responsible for any dalm In excess ol $100 per package, whelher 1M nm~l of loH, damage, delay, non-dellvluy,mlsdeliVfll)',or mlalnfonnallon, unless 

you declare a higher valUe, pay an addlllonal charge, documenc yoll' aciiJalloss and lila a 1lmely Olalm.UiniiSVons found In the current FedEX Service 

Gulde appy. Your right 10 recover from FedEX for any ross, lnckldlng lnblnslG wk!aof the paclcage,loss of sales, Income inlarast. prolll, atlocrlfN's lees. 

costs, and olher forms of dalllage whlllher direct, Incidental, consequential, or speclallallmlbid 10 1he greater of $100 or lhe Blllhplfzed declared value. Rec:ollely cannot elCC8eii'IICIUI!I doGUmantad loss.MIIlCimum for llem6 of DlltnKIIdlnary value Ia $500, e.g. jBWelfY, precious metelc, negotiable 

lns1ruments end other lte11161lsted In our ~Ide. Wrllten clalma mu&t be filed within strid time limit&, eee current FedEx S.llllce Guida. 

httrn:•/lwww fP.tlP.Y r.nm/~hinninolhtml/P.n/IPrintTFrnmP. html 2123/2010 
Shipment Receipt 

Address Information 

Ship to: Ship from: 

· Robert Sinclair ~ri Hessinger 

ECM Biofilms, Inc. Peacock Myers 

1 VICTORIA PL STE 304 !201 Third Street NW 

PAINESVILLE, OH 

44077-3406 

us 

440-350-1400 

·shipping Infonnation 

~Suite 1340 

Albuquerque, NM 

87102 

us 

5059986147 

Tracking number: 793296082432 

Ship date: 02/23/2010 

Estimated shipping charges: ~ 7.25 

Package Information 

Service type: FedEx 2-Day 

Package type: FedEx Envelope 

Number of packages: 1 

Total weight: 03LBS 

Declared valqe: O.OOUSD 

Special Services: 

Pickup/Drop-off: Drop off package at FedEx location 

BiWng Information 

Bill transportation to: Sender 

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2123/2010