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07-16-2009 PLAINTIFF’S SUBMISSION OF PROPOSED ORDER

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07-16-2009 PLAINTIFF’S SUBMISSION OF PROPOSED ORDER Powered By Docstoc
					Case 1:09-cv-00386-SEB-JMS

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) LUCILLE IACOVELLI, ) ) Defendant. ) __________________________________________) DR. BARRY EPPLEY, MD, DMD,

Cause No. 1:09-cv-386-SEB-JMS

PLAINTIFF’S SUBMISSION OF PROPOSED ORDER GRANTING FINAL INJUNCTIVE RELIEF Dr. Barry Eppley, MD, DMD, by counsel, submits herewith a proposed form of order, attached hereto as Exhibit A, granting the final injunctive relief sought in this action. The proposed order is framed as a Permanent Injunction, in light of the pending request for entry of final judgment as sought in Dr. Eppley’s Second Supplement to Show Cause Motion (see Docket No. 51 at 15-17) and in the Verified Motion for Sanctions for Defendant’s Refusal to Respond to Discovery Requests (see Docket No. 81 at ¶¶11-12). In the event the Court enters a sanctions order outside the context of a final judgment, however, Dr. Eppley respectfully requests that the Court include as sanctions the injunctive relief set forth in ¶¶1-4 of the attached order. A. Summary of proposed injunctive relief

The first four paragraphs of the proposed order address the removal of existing content on the internet. Paragraph 1 of the proposed order defines in categorical terms the false and defamatory material that Dr. Eppley seeks to have removed from the internet, as statements and other publications that assert or imply that Dr. Eppley committed malpractice in connection with

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the surgery performed on the defendant in 2001 or that he caused the adverse medical conditions she has since reported. Paragraph 2 identifies with specificity the websites and particular web pages containing such defamatory material as of July 1, 2009, consistent with the affidavits of Joseph Rompala and Tabitha Lucas submitted herewith. Paragraphs 3 and 4, then, address the post-litigation websites created by Ms. Iacovelli and her associates in violation of the Preliminary Injunction and Temporary Restraining Order. Those websites include both defamatory content within the scope of ¶1, as well as statements and accusations regarding the conduct of the litigation, and hence in violation of the Preliminary Injunction and TRO. The remaining paragraphs of the proposed order are directed to restraining further defamatory postings and harassment going forward. Paragraph 5 prohibits Ms. Iacovelli and her associates from making further postings and publications containing defamatory statements as defined in ¶1. Paragraph 6 prohibits future efforts to register domain names or utilize links or the like using Dr. Eppley’s trademarked name, or otherwise to misappropriate his likeness or identity to divert internet traffic away from his authorized websites. Paragraph 7 prohibits harassing communications directed to Dr. Eppley. Paragraphs 8 and 9 direct Ms. Iacovelli to request that those in active concert and participation with her cease any further activities in violation of the Court’s orders, and prohibits efforts to circumvent the terms of the injunction through intermediaries. Paragraph 10, finally, authorizes Dr. Eppley to provide notice of the injunction to third party providers of internet services in order to effectuate its terms. B. Provisions directed to internet service providers

An important element of the proposed order involves the direction to internet service providers to provide appropriate assistance in removing defamatory postings. The obligation is placed directly on Ms. Iacovelli and those in active concert and participation with her to remove

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defamatory content from websites and web pages, and to refrain from making further defamatory postings. Given the willful defiance with which they have violated the Preliminary Injunction and TRO, however, Dr. Eppley should not be placed in a position where the ordered relief remains dependent on securing the voluntary cooperation of the defendant and her associates. The injury inflicted on Dr. Eppley and his practice, of course, arises from the utilization of internet services and instrumentalities by Ms. Iacovelli and her agents, by which they have published and publicized defamatory statements in a calculated effort to divert internet traffic and attract the attention of those conducting internet searches using Dr. Eppley’s name. The providers of internet services they have utilized to that end, accordingly, are in a position to effectuate the relief being sought, with or without cooperation from Ms. Iacovelli, and to prevent frustration of the proposed order. The All Writs Act, 28 U.S.C. §1651(a), authorizes federal courts to enter orders that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” In United States v. New York Telephone Co., 434 U.S. 159 (1977), the Supreme Court affirmed an order directing a telephone utility to provide technical assistance and facilities to federal law enforcement officials for the purpose of installing “pen registers” to monitor the numbers called on specific telephones that were allegedly being used in connection with illegal activity. The Court explained that the authority conferred by the All Writs Act permits a federal court to issue orders to third parties in order to effectuate and prevent frustration of its orders, even where the third party is not involved in any wrongdoing: This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained . . . The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the

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implementation of a court order or the proper administration of justice, . . . and encompasses even those who have not taken any affirmative action to hinder justice. Id. at 172-74. The providers of internet services addressed in the proposed order in this case are in the same position as the telephone company in New York Telephone: they have the technical capability to effectuate the injunctive relief and to prevent Ms. Iacovelli and her associates from frustrating the requirements of the order. As explained in the affidavit and testimony of John Hicks, most of the defamatory postings at issue have been published on third party websites such as YouTube, that provide host services or internet platforms for user-submitted content. Those providers of interactive services routinely require users such as Ms. Iacovelli to comply with terms of service that prohibit the posting of unlawful content, and those providers routinely retain the operational control necessary to enforce those terms of service by themselves removing content that violates those requirements. By statute, furthermore, such providers are immune from liability for restricting access to material that is harassing or otherwise objectionable, regardless of whether the content is otherwise constitutionally protected. See 47 U.S.C. §230(c)(2)(A). The assistance of those providers in removing unlawful content is thus contemplated by statute, as well as being consistent with the terms under which such providers offer their services. The burden on those providers in providing the assistance sought by Dr. Eppley hence would be minimal.1 Some of the published material at issue, however, has been posted on websites that were registered post-litigation by Ms. Iacovelli’s associates. The known websites in that category are

1

The particular websites and web pages containing defamatory postings are identified with specificity in the Appendix incorporated in ¶2 of the proposed order. That listing is substantiated by the affidavits of Joseph Rompala and Tabitha Lucas, submitted herewith. 4

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listed in ¶3 of the proposed order.2 For those websites, there is not a third party who owns and operates the site and retains control over user-submitted content. The first three listed sites, however, are domain names that were registered through GoDaddy.com. See Hicks Affidavit (Docket No. 78) Exs. B, C, F. As explained by Mr. Hicks, domain name registrars like GoDaddy also provide their services pursuant to specified terms of service, and such registrars retain the operational control needed to terminate a registration where the domain is being used for unlawful purposes. The direction to the registrar (GoDaddy) in ¶3 of the proposed order, accordingly, would be effective in removing those websites in their entirety, and would not be unduly burdensome insofar as GoDaddy would only be enforcing its own terms of service. With respect to the other sites listed in ¶3, the Court’s authority to provide effective relief is being brazenly challenged by deliberate efforts to circumvent the Court’s jurisdiction. As explained in detail in the April 5, 2009 e-mail from Frank de Groot (see Second Affidavit of Counsel (Docket No. 16) Ex. E), those sites were registered through Russian registrars with the specific design of avoiding takedown efforts. See id. (“Russian authorities, registrars and web hosts absolutely never cooperate with takedown requests.”). On that basis, Mr. de Groot described such sites as “Weapons of Mass Destruction.” Id. As he further asserted, the conscious plan and design is to utilize search engine optimization techniques in such a way that the defamatory sites will rise to the top of search engine rankings, ahead of Dr. Eppley’s own sites. See id. (“Eventually, . . . your own pages will drop to page 2 in the SERPS, a veritable death sentence in terms of search engine visibility.”). The announced plan, furthermore, is to

2

In each instance, the websites include defamatory statements within the scope of ¶1 of the proposed order, in addition to accusations and assertions regarding the litigation. The websites listed in ¶3, therefore, have been created and maintained in direct violation of the Preliminary Injunction and TRO, and also include defamatory statements about Dr. Eppley.

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repost on Russian-registered sites all of Ms. Iacovelli’s blogs and videos that are taken down from United States websites. 3 See Sixth Affidavit of Counsel (Docket No. 77) Ex. F. The Court is thus presented with an admitted plan to frustrate any order requiring the removal of defamatory publications, by shifting the content to foreign-registered sites beyond the Court’s reach. The effectiveness of that plan, however, still depends on the ability of Ms. Iacovelli and her associates to achieve high rankings on search engines, so that members of the public conducting internet searches regarding Dr. Eppley will be driven to the sites containing the defamatory postings. That plan can be effectively thwarted, therefore, by denying access to the assistance of search engine providers such as Google. As explained by Mr. Hicks, search engines have the technical capability to control search results and to remove particular sites from searches. See Hicks Affidavit (Docket No. 78) ¶9. As indicated in the web posting cited by Mr. Hicks (id.), Google’s normal response provided by to such requests is that “the only removals . . . that we do for legal reasons are if a court orders us.” See www.dullest.com/blog/remove-pagefrom-google (emphasis added). The relief sought in ¶4 of the proposed order, therefore, is reasonably necessary to prevent the announced plan to frustrate the Court’s orders, and at the same time is consistent with Google’s policy. The burden on the search engines is minimal, as only the six sites listed in ¶3 of the proposed order are addressed in ¶4. There is good reason to expect that Google and the other search engines will cooperate in providing the needed assistance, without which the effectiveness of the injunctive relief sought by Dr. Eppley would be jeopardized.

There is considerable irony in Ms. Iacovelli’s position that her defamatory publications constitute protected speech under the United States Constitution, while at the same time she is attempting to avoid the jurisdiction of a United States District Court by posting her defamatory statements on websites registered in a foreign country. 6

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C.

Additional relief sought by Dr. Eppley

The proposed order submitted herewith sets forth the terms of the final injunctive relief being sought in this action. In addition to a Permanent Injunction, Dr. Eppley continues to propose the entry of contempt sanctions as described in the Second Supplement to the Show Cause Motion (Docket No. 51) at 3-5. If and when the Court enters final judgment as sought in both the contempt motion (see id. at 15-17) and the motion for Rule 37 sanctions (see Docket No. 81 at ¶¶11-12), the only outstanding issue would relate to recoverable damages and attorney fees. In lieu of a subsequent hearing on that subject and continued litigation, Dr. Eppley proposes an award of $10,000 as compensatory damages on the basis that the false accusations of malpractice constitute defamation per se. See Glasscock v. Corliss, 823 N.E.2d 748, 757-58 (Ind. App.), transfer denied, 841 N.E.2d 183 (Ind. 2005) (affirming award of $100,000 as presumed damages for defamation per se, and rejecting argument that only nominal damages may be awarded absent proof of special damages; fact-finder may conclude defamation per se “gave rise to presumed damages of a ‘substantial’ amount”). See also id. at 754 (“a communication is defamatory per se . . . if it imputes misconduct in a person’s trade, profession, office, or occupation”). Based on Dr. Eppley’s testimony at the July 1, 2009 hearing, the actual losses suffered as a result of Ms. Iacovelli’s internet activities is considerably greater than the proposed damages award of $10,000, but questions relating to Ms. Iacovelli’s financial status and resources make it impracticable to pursue further litigation seeking full compensation for the injuries she has inflicted. The requested award, nevertheless, would provide some compensation to Dr. Eppley and may assist in securing Ms. Iacovelli’s cooperation in adhering to the terms of the proposed Permanent Injunction.

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WHEREFORE, Dr. Eppley respectfully requests that the Court, in the context of a final judgment in this case, enter a Permanent Injunction on the terms set forth in the proposed order attached hereto, that the Court further enter additional sanctions as sought in the contempt proceedings, that the Court award $10,000 in presumed damages for defamation per se, and that the Court provide such alternative or additional relief as may be appropriate.

Respectfully submitted, LEWIS & KAPPES By:/s/ Todd A. Richardson Todd A. Richardson (16620-49) One American Square, Suite 2500 Indianapolis, Indiana 46282 (317) 639-1210 Counsel for Plaintiff, Dr. Barry Eppley

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CERTIFICATE OF SERVICE I hereby certify that on July 16, 2009, that the foregoing was filed electronically. Notice and service was sent to the following party via United States Mail, postage prepaid, this 16th day of July, 2009: Lucille M. Iacovelli 3 Deer Hollow Road Forestdale, MA 02644-1714

s/Todd A. Richardson Todd. A. Richardson LEWIS & KAPPES, P.C. One American Square, Suite 2500 Indianapolis, Indiana 46282 (317) 639-1210 (tel), (317) 639-4882 (fax) trichardson@lewis-kappes.com

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) LUCILLE IACOVELLI, ) ) Defendant. ) __________________________________________) DR. BARRY EPPLEY, MD, DMD,

Cause No. 1:09-cv-386-SEB-JMS

PERMANENT INJUNCTION The Court, having entered final judgment in favor of the Plaintiff, Dr. Barry Eppley, on his Verified Complaint, and having found that the Defendant, Lucille Iacovelli, has published numerous false and defamatory statements concerning the Plaintiff on a variety of websites using means of publication available through internet service providers, and has engaged in harassing communications and publications in violation of federal and state law, and has violated the Plaintiff’s rights in his federally registered trademark, and thereby has injured the plaintiff, his reputation and his medical practice, and having further found that the Defendant and those in active concert and participation with her have willfully violated the Preliminary Injunction and Temporary Restraining Order issued in this action, and have produced further publications on a variety of websites in violation of this Court’s orders utilizing internet service providers to disseminate and promote those publications, and have engaged in further unlawful harassment and extortion in violation of federal and state law, including threats to reputation in an effort to extort litigation concessions in violation of 18 U.S.C. §875(d), and have further violated the

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Plaintiff’s rights under the federal trademark laws, and have thereby inflicted further injury to the Plaintiff, his reputation and his medical practice, and having further found that, in light of the prior willful violations of this Court’s orders by Defendant and her associates, there is substantial reason to anticipate that the assistance and aid of internet service providers may be necessary and appropriate to effectuate and prevent the frustration of the relief ordered herein, THEREFORE ORDERS, ADJUDGES AND DECREES as follows: The Defendant, Lucille Iacovelli, her agents and those in active concert and participation with her, are hereby permanently enjoined and directed as follows: 1. All statements, including written publications, videos and any other form of

communication, published on the internet by Defendant, her agents, those in active concert and participation with her and those who have offered services to Defendant for purposes of publicity, intimidation and/or harassment, that assert or imply, directly or indirectly, that the Plaintiff, in connection with the surgery performed on Defendant in 2001, committed malpractice, was negligent or otherwise mishandled the surgery, or that Plaintiff caused or is otherwise responsible for adverse medical conditions reported by Defendant, including without limitation upper airway obstructions, ringing in the ears and/or impairment of head and neck mobility, shall be removed immediately. 2. As of July 1, 2009, the websites and web pages identified in “Appendix A”

attached hereto and incorporated by reference, included published statements or videos falling within the scope of ¶1 of this Permanent Injunction. All publications, statements and videos within the scope of ¶1 of this Permanent Injunction as published on the websites and web pages identified in “Appendix A,” as well as all other such statements or videos as may have been published by Defendant or those acting on her

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behalf subsequent to July 1, 2009, shall be removed immediately. In accordance with 47 U.S.C. §230(c)(2)(A) and 28 U.S.C. §1651(a), providers of interactive computer services operating or otherwise controlling the foregoing websites and web pages are directed, upon due notice of this Permanent Injunction to be provided by Plaintiff, to provide all reasonable and appropriate assistance to Plaintiff as may be needed to effectuate the removal of the content identified in ¶1 of this Permanent Injunction. 3. The following websites and web pages created after the initiation of this action by

Defendant, her agents, those in active concert and participation with her and/or those who have offered services to Defendant for purposes of publicity, intimidation and/or harassment have been maintained in violation of the Temporary Restraining Order and/or the Preliminary Injunction in this action: a. b. c. d. e. f. www.eppleyplasticsurgerysucks.com www.lewis-kappessucks.com www.judgegod.com www.barryeppleyplasticsurgeon.com http://barry-eppley.owndoc.com www.losingface.org

The foregoing websites and web pages shall be removed in their entirety immediately. In accordance with 28 U.S.C. §1651(a), domain name registrars for any and all domestically registered websites identified in this paragraph are directed, upon due notice of this Permanent Injunction to be provided by Plaintiff, to provide all reasonable and appropriate assistance to Plaintiff as may be needed to effectuate the removal of the foregoing websites and web pages. 4. Insofar as the websites and web pages identified in ¶3 of this Permanent

Injunction have been created and maintained in violation of the Temporary Restraining Order and/or the Preliminary Injunction in this action, with the purpose and intent of circumventing or otherwise frustrating the effectiveness of this Court’s orders, including through the registration

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of sites in foreign countries in an effort to avoid enforcement of such orders, and with the design and effect of attaining search engine rankings that would drive internet traffic away from sites operated or otherwise authorized by Plaintiff and toward sites operated or controlled by Defendant or those acting on her behalf, providers of search engine services, including without limitation Google, Yahoo!, Bing and Ask, are directed, in accordance with 28 U.S.C. §1651(a) and upon due notice of this Permanent Injunction to be provided by Plaintiff, to remove the websites and web pages identified in ¶3 from search results or otherwise to take all reasonable and appropriate steps as may be needed to prevent those sites from being included in posted results for searches conducted within their operation or control. 5. The Defendant, her agents, those in active concert and participation with her

and/or those who have offered services to Defendant for purposes of publicity, intimidation and/or harassment are enjoined, restrained and prohibited from publishing, on the internet or otherwise, any statements or videos that assert or imply, directly or indirectly, that the Plaintiff, in connection with the surgery performed on Defendant in 2001, committed malpractice, was negligent or otherwise mishandled the surgery, or that Plaintiff caused or is otherwise responsible for adverse medical conditions reported by Defendant, including without limitation upper airway obstructions, ringing in the ears and/or impairment of head and neck mobility. 6. The Defendant, her agents, those in active concert and participation with her

and/or those who have offered services to Defendant for purposes of publicity, intimidation and/or harassment are enjoined, restrained and prohibited from registering, establishing or otherwise creating any websites, domain names, links, tags or other devices which use, in whole or in part, the Plaintiff’s registered and protected name, which imitate the Plaintiff or otherwise assume or appropriate the Plaintiff’s likeness or identity in any respect, or which otherwise have

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the purpose or effect of redirecting internet traffic away from websites operated or authorized by Plaintiff. 7. The Defendant, her agents, those in active concert and participation with her

and/or those who have offered services to Defendant for purposes of publicity, intimidation and/or harassment are enjoined, restrained and prohibited from issuing and/or distributing, directly or indirectly, any e-mails or other communications to Plaintiff asserting, implying or premised in any way on an assertion or implication that the Plaintiff, in connection with the surgery performed on Defendant in 2001, committed malpractice, was negligent or otherwise mishandled the surgery, or that Plaintiff caused or is otherwise responsible for adverse medical conditions reported by Defendant, including without limitation upper airway obstructions, ringing in the ears and/or impairment of head and neck mobility. 8. The Defendant is directed, ordered and instructed to clearly and explicitly request

and to take all actions within her power to cause her agents, those in active concert and participation with her and/or those who have offered services to her for purposes of publicity, intimidation and/or harassment to remove all postings identified in ¶¶1-2 of this Permanent Injunction, to remove all websites and web pages identified in ¶3, to refrain from making further postings or publications within the scope of ¶5, to refrain from engaging in any conduct identified in ¶6, to refrain from engaging in any communications within the scope of ¶7, and in all other respects to obey this Permanent Injunction and to carry out its terms in full. 9. The Defendant, her agents, those in active concert and participation with her

and/or those who have offered services to Defendant for purposes of publicity, intimidation and/or harassment are enjoined, restrained and prohibited from requesting, directing, instructing

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or otherwise attempting to cause any other individual or third party to perform any acts which they themselves are prohibited from taking under the terms of this Permanent Injunction. 10. Plaintiff is hereby authorized to provide notice of this Permanent Injunction to

providers of internet services, including without limitation providers of interactive computer services, domain name registrars and search engines, for the purpose of effectuating ¶¶2-4 of this Permanent Injunction, and as may be necessary and appropriate to prevent the frustration of this Permanent Injunction. IT IS SO ORDERED.

Date:__________________________________

____________________________________ Sarah Evans Barker, Judge United States District Court Southern District of Indiana

Copies to: Gary P. Price LEWIS & KAPPES GPrice@Lewis-Kappes.com Todd Arthur Richardson LEWIS & KAPPES TRichardson@Lewis-Kappes.com Joseph Peter Rompala LEWIS & KAPPES JRompala@Lewis-Kappes.com LUCILLE IACOVELLI 3 Deer Hollow Road Forestdale, MA 02644

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APPENDIX “A”
1. From the website “Losingface.net”, the following pages, posts, links, videos, images and documents: “Considering Cosmetic Surgery? Read this First”; “Frightening Facts”; “the FINAL Misdiagnosis”; “About – Bookmark this site – pages added daily”; “MGH Plastic Surgery Residents’ Clinic – Part I”; “Dr. Barry Eppley & Meridian Plastic Surgery Center”; “Dr. Barry Eppley – E-mail before surgery”; “Dr. Eppley-Consultation notes – Feb. 21, 2001”; “Video sent to Dr. Eppley – very specific”; “Pressured into unnecessary general anesthesia” (which contains links to four (4) documents on http://picasaweb.google.com that include the operative note for Ms. Iacovelli’s surgery, the letter from the anesthesiologist identified in the report, and Ms. Iacovelli’s consent form); “Operative Report – Dr. Eppley – April 18, 2001”; “Dr. Barry Eppley – Height of Hypocrisy”; “Dr. Barry Eppley – FDA Violations” (which contains a link to a “Warning Letter Bulletin” related to Dr. Eppley’s practice); “Dr. Barry Eppley’s infection rate viewed as unacceptably high”; “Dr. Barry Eppley – Malpractice History” (which contains a link to the State of Indiana’s malpractice database); “Dr. Eppley plays ‘Blame the Vctim’ [sic]”; “My response to Dr. Eppley”; “Response – continued II”; “Dr. Barry Eppley omitted most important part of operation”; “Dr. Raffi der-Sarkissian - Consultation-April 3, 2002”; “Masters of Prevarication”; “MBS Evaluations: 12/09/03”; “Report from Pulmonologist – May 2004”; “Modified Barium Swallow – May 2003”; “Another set of eyes and ears”; “Disturbing discovery – Dr. Barry Eppley’s malpractice lawsuit”; “Extreme measures necessary to survive”; “Dr. Raffi der-Sarkissian . . . saved these lives . . why not mine?”; “While Dr. der-Sarkissian watched…”; “As an act of good faith”; and “Postmortem Examination of Dr. Barry Eppley’s botched facelift.” Also, the emails contained at “http://docs.google.com”, but linked through the website “losingface.net” identified as follows: “Dr. Eppley’s response” containing an email of April 16, 2001 and commentary; “After the operation” consisting of two emails dated May 12, 2001, and one email dated May 16, 2001 regarding Ms. Iacovelli’s post-operative status and containing the subject line “Ear Pain”; “Immediate denial” containing two emails dated May 8, 2001 with subject line “Postoperative results”; “Dr. Eppley’s Operative Report. . . .” consisting of the operative report; “Omitted the Most important part. . . .” consisting of images and commentary describing the alleged outcome of the surgery and the alleged physical condition of Ms. Lucille Iacovelli; “Never answered this or many . . . .” consisting of an email dated April 22, 2002 inquiring about the operation; “Email to Dr. Eppley. . . on year later. . . .” containing an email from April 9, 2002 regarding the operation; “Dr. Eppley’s talent for twist. . . .” containing an email from Dr. Eppley dated March 7, 2002; and “Confidentiality? Not at Meridian Plastic Surgery” containing five emails dated between January 26, 2002 and February 3, 2002 regarding a supposed breach of confidential information by Dr. Eppley and his staff, and associated commentary. 2. From the website, “Youtube.com” the following pages, posts, links, videos, images, and documents: “www.youtube.com/user/luciacovelli” and specifically, content located at: 7

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http:www.youtube.com/profile?user=Luciacovelli&view=videos and http://www.youtube.com/user/Dreppleysvictims and the posting by “fightnewsunlimited” at http://www.youtube.com/watch?v=V0bsv5RXZDU titled “Justice For Lucille Iacovelli: Dr. Barry Eppley Sucks.” 3. From the website “luciliacovelli.wordpress.com”, the following pages, posts, links, videos, images and documents: “Dr. Barry Eppley is being sued for medical malpractice . . . again”; “Compalints [sic] from other sites regarding Dr. Barry Eppley”; “Silencing Truth by Intimidation”; “Trying (& Failing) to Save My Life from Botched Facelift”; “Recipe for misdiagnosis? ~ Botched Facelift ~ Neck lift by Dr. Barry Eppley”; “Facelift Journey to Hell”; “The Killing Revision Facelift”; and “Cosmetic Surgery Catastrophe.” Linked to the website http://luciacovelli.wordpress.com/ is the page http://luciacovelli.wordpress.com/page/2/, which includes a posting titled “Exposing the Ugly Side of Cosmetic Surgery:: lucille iacovelli in Cape Cod, MA: Medicine/Plastic Surgery blog at Rediff iLand.” 4. From the website “www.cosmeticsurgeryuglyside.blogspot.com”, the following pages, posts, links, videos, images and documents: “What I have a right to publish”; “Dr. Barry Eppley – After photos”; “On second thought . . .”, “As an act of good faith”; “Eppley -- Will you try to ‘buy’ or ‘threaten’ the Medical Examiner?”; “Doc sues Web-savvy ex-patient . . . me,” (including comments signed by Mr. Rich Bergeron and Mr. Frank de Groot); “Yesterday’s plan’s and expectations = Today’s failure and regret”; “At the end”; “People who restore my spirit – I thank all of you from my heart”; “Some people recognize truth when they see it”; “Where are Dr. Eppley’s Videos?”; “Dr. Barry Eppley – Why doesn’t he want people to see these results?”; “What keeps me going . . .” (which contains videos regarding Ms. Iacovelli’s alleged injuries); “Those glowing fake reviews”; “Lethal Games Doctor’s Play”; “What Dr. Barry Eppley Doesn’t Want You to Know”; “Dr. Barry Eppley – Warning letter from FDA”; “Another patient/victim of Dr. Barry Eppley”; “An Open Letter to Dr. Joel Feldman, Plastic Surgeon”; “7th Anniversary of Barry Eppley’s Facelift Death Sentence”; “Consent form for surgery by Dr. Barry Eppley”; “Dr. Barry Eppley – Anesthesia Record – Whose scribble is this?”; “Anesthesiologist Reveals Dr. Eppley’s False Statement”; “Letter from Anesthesiologist”; “Dr. Barry Eppley – Lies on Operative Report”; “Dr. Barry Epply is being sued for medical malpractice . . . again”; “Complaints from other sites regarding Dr. Barry Eppley” (which contains links to several of Ms. Iacovelli’s own websites, posts, and videos); “Hospital-based Spas – Are they really safe?”; “Silencing Truth by Intimidation”; “Video Diary of Dr. Barry Eppley’s Damaging Facelift Results – 2001 – 2003 – 2004”; “Trying

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(& Failing) to Save My Life from Botched Facelift”; “Recipe for misdiagnosis?”; “The Killing Revision Facelift”; and “Cosmetic Surgery Catastrophe.” 5. From the website “http://.lucilleiacovelli.blogspot.com”, the following pages, posts, links, videos, images and documents: “Yesterday’s plans and expectations = Today’s failure and regret”; “Then and Now”; and “A Special Kind of Medicine.” 6. From the website “http://eppleylawsuit.blogspot.com” the following pages, posts, links, videos, images and documents: “My appeal to Dr. Eppley ignored”; “As an act of good faith . . .”; “Dr. Eppley – Consultation Notes – Feb. 21, 2001”; “Dr. Eppley omitted most important part of operation”; “Dr. Eppley lied on operative report about anesthesiologist”; “Considering cosmetic surgery? Read this first.”; “Dr. Barry Eppley Pressured me into having unnecessary general anesthesia”; “What Dr. Barry Eppley is desperately trying to hide.” 7. From the website “http://lucilleiacovellieye.blogspot.com”, the following pages, posts, links, videos, images and documents: “My appeal to Dr. Eppley ignored”; “As an act of good faith. . .”; “Dr. Eppley’s ‘Super Lawyer’”; “Dr. Barry Eppley sues Web-Savvy botched ex-patient”; “Professional Misconduct” and “Medical Treatment in India.” 8. From the website “www.awfulplasticsurgery.com”, the following pages, posts, links, videos, images and documents: “Video diary of a plastic surgery victim” and any and all associated comments posted, or identified with, Mr. Richard Bergeron, Mr. Frank de Groot, or Ms. Erika Hahn. 9. From the website “http://luciacovelli.livejournal.com”, the following pages, posts, links, videos, images and documents: “Yesterday’s plans and expectations = Today’s failure and regret”; “Plastic Surgery Nightmare for this woman!”; “The wisdom and regret of hindsight – If I only KNEW!”; the posts made on January 14, 2009 including emails with the subject line “Ear Pain” and “Mchlewisn” and a post containing Dr. Eppley’s pre-operative note; “Dr. Barry Eppley – photos of facelift”; “Dr. Barry Eppley – facelift results”; “Dr. Barry Eppley – Before and after facelift photos”; “Dr. Barry Eppley – Photos of facelift results”; “Dr. Barry Eppley – Facelift photos”; “What Dr. Barry Eppley Doesn’t Want you to Know”; “Bad result by Dr. Barry Eppley”; “Facelift by Barry Eppley – 7 Years of Torture . . . Left to Die”; “facelift Morbidity to Mortality? Ask Dr. Barry Eppley How & Why”; “Dr. Barry Eppley – Medical malpractice history”; the March 20, 2007 consultation notes of Dr. Birbiglia; the January 14, 2009 post containing X-ray images; the post on January 14, 2009 containing an email and its attachments sent to Dr. Eppley with the subject line “Lisa Harris e-mail” as well as Ms. Iacovelli’s commentary; the emails posted on January

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14, 2009 between Ms. Iacovelli and Dr. Eppley; the post on January 14, 2009 regarding Dr. Eppley’s alleged omission during the surgical procedure and the accompanying images; Dr. Eppley’s operative note, posted on January 14, 2009; the January 14, 2009 posts made between 9:13 pm and 9:14 pm consisting of three (3) emails between Dr. Eppley and Ms. Iacovelli, and Ms. Iacovelli’s independent commentary; “April 18 – 7th Anniversary of Barry Eppley’s Death Sentence” posted on April 18, 2008 at 7:36 pm; “Death Sentence – Facelift by Barry Eppley”; “April 18 – 7th Anniversary of Barry Eppley’s Death Sentence” posted on April 18, 2008 at 4:39 pm; “Facelift by Dr. Barry Eppley is killing me – Jan. 17. 2008”; “Dr Barry Eppley Omitted Essential Part of my Operation”; “Video Diary – Dr. Barry Eppley – Disastrous Facelift”; “Facelift by Dr. Barry Eppley – 6 months post-op”; “Dr. Barry Eppley – Facelift Journey from Health to Hell -1”; “Recipe for misdiagnosis – Botched Facelift – Neck Lift”; “Facelift by Dr. Barry Eppley Threatens My Survival”; “Cosmetic Surgery Catastrophe – Erika Hahn, Filmmaker”; and “Facelift Journey to Hell.” 10. From the website, “http://picasaweb.google.com” the following pages, posts, links, videos, images and documents: The page described as “Lucille’s Public Gallery” located at “http://picasaweb.google.com/luciacovelli” containing the following items: “The ‘examination’ they refuse to perform”; “After Dr. Eppley’s Disasterous [sic] Revision”; and “Dr. Barry Eppley – Photos After Revision Surgery – 2001 – 2008”; and the following other galleries: http://picasaweb.google.com/luciacovelli/DrBarryEppleyPhotosAfterRevisionSurgery; and http://picasaweb.google.com/luciacovelli/WhatIWasForcedToDoTOSurvive20072008. 11. From the website, “Complaintsboard.com” the following pages, posts, links, videos, images and documents: “Dr. Barry Eppley Complaints – Do not risk your precision health by undergoing cosmetic surgery!” and the comment by “Boxer_47” containing a link to the website www.eppleyplasticsurgerysucks.com. 12. From the website, “Consumers2Consumers.com” the following pages, posts, links, videos, images and documents: “Dr. Barry Eppley – Worse than Negligent.”

13. From the website, “Myspace.com” the following pages, posts, links, videos, images and documents:

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http://www.myspace.com/luciacovelli including: “Lucille Iacovelli ~ Cape Cod: Yesterday’s plans and expectations = Today’s failure and”; “The compassion of strangers”; “Losing face has a new home”; “Inadequate Physical Exam”; and “Dr. Barry Eppley Facelift Diary”; and http://blogs.myspace.com/index.cfm?fuseaction=blog.ListAll&friendId=352450308.

14. From the website “Plasticdisaster.wordpress.com”, the following pages, posts, links, videos, images and documents: “A closer look at cosmetic surgery catastrophe”; “The final misdiagnosis”; “What keeps me going. . . .”; “Dr. Barry Eppley Omitted Essential Part of My Operation – Video”; “Inadequate Physical Examination – Video”; “Left to Die…”; “Yesterday’s plans”; “Doctors responsible for my losing all trust in the medical profession in this country”; “Lady suffocates for years due to botched consmetic [sic] surgery”; and “Forced to Mutilate my own Flesh to Survive.” A related page, http://plasticdisaster.wordpress.com/page2/, includes videos and posts with the titles: “Left to die…”; “What keeps me going”; “Dr. Barry Eppley Omitted Essential Part of My Operation – Video”; “Inadequate Physical Examination – Video”; “The Doctor’s Blind Eye”; “Video Diary of a Blacklisted Patient – February 6, 2007”; “Surgeon ignored what I have been forced to do to survive”; and “My friend can ‘palpate’ the area . . . but a surgeon can not?” Another related page, http://plasticdisaster.wordpress.com/page3/, includes videos and/or posts with these titles: “Inadequate Physical Examination”; “Forced to mutilate my own flesh to survive – From my video diary – December 2006”; “7 Years of Survival”; “Tragedy of Botched Cosmetic Surgery”; and “Lethal Games Doctors Play.” Yet another related page, http://plasticdisaster.wordpress.com/page4/, includes videos and/or posts with the titles: “Time”; “What Dr. Barry Eppley Doesn’t Want You To Know”; “Dr. Barry Eppley- FDA finds ‘several serious violations’”; “Dr. Barry Eppley – Bad Facelift – Cheek Implants – Lip Augmentation”; and “An Open Letter to Dr. Joel Feldman, Plastic Surgeon” (which includes references to Dr. Eppley). Another related page, http://plasticdisaster.wordpress.com/page5/, includes videos and/or posts with these titles: “Consent form for surgery by Dr. Barry Eppley”; “Anesthesia Record – Whose scribble is this?”; “Letter from Anesthesiologist Reveals False Statement on Dr. Eppley’s Operative Report”; “False Statement on Operative Report by Dr. Barry Eppley”; “Dr. Barry Eppley – Medical Malpractice History”; “Silencing Truth by Intimidation”; “Lies – Tragedy of Botched Cosmetic Surgery”; and “Dr. Barry Eppley Facelift ~ 7 years of Torture ~.” The final related page, http://plasticdisaster.wordpress.com/page6/, includes videos and/or posts with the following titles: “Facelift by Dr. Barry Eppley – 6 months post –op”; “Video Diary – Dr. Barry Eppley – Disastrous Facelift”; “Dr. Barry Eppley – The Killing Revision Facelift”; “Facelift by Dr. Barry Eppley caused Positional Airway Obstruction”; “Facelift Hell”; “Unveiling the Truth about cosmetic Surgeons and Surgery”; “Exposing the Ugly Side of Cosmetic Surgery”; “7 years of survival – Dr. Barry Eppley’s Curse”; “Dr. Barry Eppley Omitted Essential Part of my Operation”; and “Dr. Barry Eppley – Facelift Journey from Health to Hell.”

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15. From the website, “Helium.com” the following pages, posts, links, videos, images, and documents: The posts located at http://www.helium.com/users/331304 as “About me” containing links to the following websites: http://cosmeticsurgeryuglyside.blogspot.com/; http://losingface.net; and http://lucilleiacovelli.blogspot.com/. 16. From the website, “Zimbio.com” the following pages, posts, links, videos, images, and documents: http://www.zimbio.com/Plastic+Surgery+Discussion/articles/96/What+keeps+me+going including the videos: “Dr. Barry Eppley Omitted Essential Part of My Operation-Video” and “Inadequate Physical Examination-Video.”

17. From the website, “TheSqueakyWheel.com” the following pages, posts, links, videos, images, and documents: http://www.thesqueakywheel.com/complaints/2009/JAN/complaint42918.cfm and http://www.thesqueakywheel.com/complaints/2007/FEB/complaint11629.cfm consisting of posts titled “Dr. Barry Eppley & Andrea Bradley-Stutz Cannot Silence Truth” and “Barry Eppley: Cosmetic Surgery’s Unscrupulous Smooth Operator.” 18. From the website, “Unlimitedfightnews.com” the following pages, posts, links, videos, images, and documents: http://unlimitedfightnews.com/wordpress/?p=2930 titled “Rabble Rousin’ Rich Bergeron’s Latest Legal Fight.” 19. From the website “Photobucket.com” the following pages, posts, links, videos, images, and documents located at: All images that depict Ms. Lucille Iacovelli on the page identified as http://s303.photobucket.com/albums/nn137/luciacovelli/?start=all. 20. The website “www.funny.godiggs.com/Dr-Barry-Eppley-Before-the=FaceliftJournal-from-Health-to-Hell.” 21. The website “http://video.aol.com/video-detail/dr-barry-eppley-facelift-journeyfrom-health-to-hell.” 22. 23. 24. The website “www.eppleyplasticsurgerysucks.com.” The website “www.lewis-kappessucks.com.” The website “www.judgegod.com.”

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25. 26. 27. 28. 29. 30. 31. 32.

The website “www.barryeppleyplasticsurgeon.com.” The website “http://barry-eppley.owndoc.com.” The website “www.losingface.org.” The website “http://luciacovelli.multiply.com.” The website “http://losingface.multiply.com.” The website “http://suckssite.ning.com/profile/LucilleIacovelli.” The website “www.veoh.com/group/luciacovelli.” The website “www.vimeo.com/luciacovelli.”

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