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					     Case 1:09-cv-00386-SEB-JMS Document 91   Filed 06/26/09 Page 1 of 36

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1                      UNITED STATES DISTRICT COURT
                       SOUTHERN DISTRICT OF INDIANA
2                         INDIANAPOLIS DIVISION
3
4 DR. BARRY EPPLEY, MD, DMD,            )
                                        )
5                   Plaintiff,          )   CAUSE NO.:
                                        )   1:09-cv-386-SEB-JMS
6                                       )   Indianapolis, Indiana
              -v-                       )   April 7th, 2009
7                                       )
     LUCILLE IACOVELLI,                 )
8                                       )
                    Defendant.          )
9
10                           Before the Honorable
                          SARAH EVANS BARKER, JUDGE
11
                    OFFICIAL REPORTER'S TRANSCRIPT OF
12                    PRELIMINARY INJUNCTION HEARING
13
14
     FOR THE PLAINTIFF:               Todd A. Richardson
15                                    Gary P. Price
                                      Joseph P. Rompala
16                                    Lewis & Kappes
                                      2500 One American Square
17                                    Indianapolis, IN 46282
18 FOR THE DEFENDANT:                 Lucille Iacovelli
   (Pro Se)                           (In appearance telephonically)
19
20 Court Reporter:                    Laura Howie-Walters, CSR/RPR
                                      Official Court Reporter
21                                    46 East Ohio Street
                                      Indianapolis, Indiana 46204
22
23
24
               PROCEEDINGS TAKEN BY MACHINE SHORTHAND
25 TRANSCRIPT PRODUCED BY ECLIPSE NT COMPUTER-AIDED TRANSCRIPTION
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1                               (Open court.)

2              THE COURT:    Good afternoon all.
3              Miss Schneeman, call the matter before the Court,
4 please.
5                      (Call to order of the Court)
6              THE COURT:   Let me just establish who is here,
7 especially since the defendant is present by telephone, so
8 I'll start with --
9                           (Brief interruption)
10             THE COURT:   You'll have to stop talking until I call
11 on you because you'll be talking over me and the Court
12 reporter can't make a record, please.
13             Mr. Richardson, you're here, and would you indicate
14 who else is at your table, please?
15             MR. RICHARDSON:    Thank you, Your Honor.           Todd
16 Richardson of the law firm of Lewis & Kappes on behalf of the
17 plaintiff.    With me here at counsel table is the plaintiff,
18 Dr. Barry Eppley, and also Gary Price and Joe Rompala of Lewis
19 & Kappes.
20             THE COURT:   And Ms. Iacovelli, are you there?
21             MS. IACOVELLI:    Yes, Your Honor, I'm here.          I can
22 just barely hear.
23             THE COURT:   I can hear you, but your voice is low as
24 well.   So you'll need to keep your voice up and I'll try to do
25 the same.    If you have an extension -- Miss Iacovelli, if you
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1 have an extension phone that's working at the same time on
2 your line, it may be sapping some of the strength of the
3 volume.     So you may want to have it be just one phone.            I
4 don't know --
5              MS. IACOVELLI:    Your Honor, I'm on an Internet
6 connection, so there's only just this one line.
7              THE COURT:   Okay.   I can hear you just fine.          So I
8 hope that we'll be able to proceed in this fashion since
9 you've asked to be relieved of the necessity of coming to
10 court today except by your telephone appearance.
11             The Court issued its order on March 30th, 2009,
12 entering a temporary restraining order, and I know that you
13 got that because I've heard from you, Miss Iacovelli.              That's
14 true, right?
15             MS. IACOVELLI:    Yes, Your Honor.
16             THE COURT:   And at the conclusion of that order,
17 which restrained you from certain uses of the Internet and
18 other means of disseminating statements and remarks that the
19 plaintiff alleges to be adverse to his business interests, I
20 noted that this would be heard again today, and that's why we
21 have convened court here.
22             The issue before the Court is, first of all, why a
23 preliminary injunction should not be issued to extend the
24 constraints, or the restraints, during the pendency of this
25 litigation.
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1              There have been some intra-motions filed as well,
2 one seeking contempt.       I have also received e-mail filings,
3 the answer to the complaint, and a counterclaim, and that this
4 is a pro se filing, which is to say you wrote it yourself.
5              The plaintiff has, in addition to seeking contempt
6 sanctions for your failure to abide by the temporary
7 restraining order, also seeks to have your associate, or your
8 friend, Mr. Bergeron, prohibited in engaging in the
9 unauthorized practice of law.        So that also is before me.
10             I assume you got those motions as well, did you,
11 Miss Iacovelli?
12             MS. IACOVELLI:    Yes, I did, Your Honor.           I admit
13 that I did not have the opportunity to read through all of
14 this material.
15             THE COURT:   Okay.   Well, those are the matters
16 before the Court that I need to address, and so I'll recognize
17 you, Mr. Richardson, first to place before the Court and to
18 state for Ms. Iacovelli's purposes what your client's
19 interests are at this particular hearing.
20             MR. RICHARDSON:    Thank you, Your Honor.
21             Your Honor, we're before the Court on a preliminary
22 injunction motion following up on the temporary restraining
23 order that the Court entered on March 30th, 2009.               We have
24 also asked the Court to hear today the motion for an order to
25 show cause on why both the defendant, Ms. Iacovelli, and
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1 Mr. Bergeron should not be held in contempt for violating the
2 temporary restraining order.        And that primarily addresses
3 events that unfolded over the weekend, and we filed that
4 motion yesterday.
5              We are prepared to address the unauthorized practice
6 of law motion at the Court's convenience, and I would seek the
7 guidance from the Court as to whether that is something to
8 take up today or not.
9              THE COURT:   All right.    Let me ask, is Mr. Bergeron
10 on the line?
11             MR. BERGERON:    Yes, Your Honor, I'm here.
12             THE COURT:   Mr. Bergeron, my understanding is that
13 you are not a lawyer; is that right?
14             MR. BERGERON:    No, Your Honor, I am not a lawyer.
15             THE COURT:   You are not empowered by law to serve as
16 a lawyer when you're not a lawyer.         And so Ms. Iacovelli's
17 filings with the Court can be made by her pro se, but you have
18 no standing before the Court with respect either to your own
19 interests or as her advocate.       And I will only call on her
20 because she's entitled to represent herself, but you are not
21 entitled to represent her.
22             Do you understand that, sir?
23             MR. BERGERON:    Your Honor, yes, but in respect to
24 the counterclaims, I believe that I do have standing to speak
25 for the law involved at least.
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1              THE COURT:   Well, this gets complicated, and if you
2 were to engage a lawyer, you'd begin to understand that you
3 can't just assert yourself into the proceedings by claiming to
4 be an interested party.       You have to do this in --
5              MR. BERGERON:    Your Honor, I'm named in the --
6              THE COURT:   Mr. Bergeron, you have to wait 'til I
7 stop and then I'll call on you, please.
8              MR. BERGERON:    Yes, Your Honor.
9              THE COURT:   I'll hear from you, but you can't talk
10 at the same time I am.
11             So, Mr. Bergeron, in order to be brought into the
12 litigation to the extent that you have any separate
13 independent interest, you have to do that in a procedurally
14 proper way, and you can't just simply name yourself as a
15 counter-claimant in the litigation that is before the Court
16 involving Dr. Eppley and Ms. Iacovelli.
17             So I will not allow you to be heard either as her
18 advocate or as a party in this case until -- unless and until
19 you can satisfy the requisite procedural showing to be brought
20 into the litigation.
21             So I'm just going to be inquiring now of
22 Ms. Iacovelli.     And Ms. Iacovelli, you should be the one
23 answering my questions.      It doesn't matter to me if you get
24 advice from Mr. Bergeron, but he can't appear for you, and I
25 will not recognize him to speak for you as if he were an
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1 attorney, when of course he's not.
2              So with respect to the immediate issue before the
3 Court, and that is whether the temporary restraining order
4 ought to be continued or whether it ought to be replaced in a
5 longer-term way by a preliminary injunction, that's the
6 primary issue before me at this time.
7              Now, ordinarily before a preliminary injunction
8 order is considered and ruled upon, we hear evidence, and
9 parties come before the Court and make sworn statements that
10 are subject to cross-examination as to whether or not that
11 relief ought to be granted to the plaintiff or withheld from
12 the plaintiff during the pendency of the litigation.
13             So it's not going to work to have you appear by
14 telephone in the sense that I can't extract evidence from you
15 that is cognizable, that is to say that I can consider and
16 base a ruling on, without some witness testimony.
17             The submissions you made, as best I have noted, are
18 not verified, that is to say they are not attested to under
19 penalties of perjury and that sort of thing.           So they haven't
20 come before the Court as sworn declarations.           And therefore
21 they don't constitute evidence.       They constitute allegations
22 or claims, and that doesn't suffice in terms of the ruling
23 that the Court has to make.
24             So let me ask, do you intend to get a lawyer,
25 Ms. Iacovelli?
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1              MS. IACOVELLI:    Your Honor, I cannot afford an
2 attorney.     I live on a poverty-level income.         I cannot travel
3 to Indiana.     I am barely able to leave my apartment to perform
4 necessary errands.      And the reason that I asked if Rich
5 Bergeron could represent me or actually to be my voice is
6 because physically, speaking, I get very short of breath and
7 it takes quite a physical exertion for me to speak.
8              THE COURT:   It's my understanding --
9              MS. IACOVELLI:    So yes -- I'm sorry, Your Honor.
10             THE COURT:   Excuse me, Miss Iacovelli.         It's my
11 understanding that you have engaged a lawyer in some other
12 litigation; is that true?
13             MS. IACOVELLI:    I'm sorry, I didn't hear that.
14             THE COURT:   I understand that you have engaged a
15 lawyer in other litigation that's pending in another
16 jurisdiction; is that true?
17             MS. IACOVELLI:    Yes, Your Honor, that's true.
18             THE COURT:   So, at least in that case you were able
19 to afford a lawyer; is that right?
20             MS. IACOVELLI:    I -- I don't have any money to pay a
21 lawyer further.
22             THE COURT:   No, you didn't apparently hear what I
23 said.   In the other case, you apparently had -- you were
24 apparently successful in making some arrangement with that
25 lawyer to represent you.      I don't know if it was because of
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1 friendship or financial or whatever, but a lawyer is
2 representing you in another case; isn't that true?
3              MS. IACOVELLI:    Yes, that's true, and I actually
4 borrowed -- had to borrow money to pay him.
5              THE COURT:   Have you talked to that lawyer about
6 representing you in this case as well?
7              MS. IACOVELLI:    Yes, I have, and he said that he
8 is -- would not be able to do that for me.
9              THE COURT:   Well, have you made any effort to engage
10 a lawyer to represent you in this one or have you just decided
11 you can't do that?
12             MS. IACOVELLI:    I have tried to contact lawyers in
13 Indiana.
14             THE COURT:   What have you done to try to contact a
15 lawyer here?
16             MS. IACOVELLI:    Excuse me?
17             THE COURT:   What steps have you taken to try to
18 engage a lawyer in this case?
19             MS. IACOVELLI:    I'm sorry, Your Honor.        That was --
20 I couldn't, there was some kind of echo that I couldn't quite
21 hear.
22             THE COURT:   I'll repeat what I said.         What steps
23 have you taken to engage a lawyer in Indiana to represent you
24 in this case?
25             MS. IACOVELLI:    I -- I contacted an organization in
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1 Indiana, a pro -- that has attorneys that work pro bono for
2 civil cases, and I have not gotten any response.
3              THE COURT:    Do you remember the person's name or the
4 organization's name?
5              MS. IACOVELLI:     No, I'm sorry, I don't have it
6 offhand.     I found it on the -- it was one of the links that
7 appeared on the Court, Indiana court website.              I think it
8 was -- oh, I'm not sure.        I would have to look it up.
9              THE COURT:    Did you ask your lawyer in the other
10 case to help you find a lawyer in Indiana to represent you in
11 this one?
12             MS. IACOVELLI:     Well, I've been searching and I have
13 not been successful thus far.
14             THE COURT:    Apparently the echo is because you're
15 broadcasting or hearing at your end of things; is that right?
16             MS. IACOVELLI:     I don't know.      I've never used this
17 system before except to speak to one other individual.
18             THE COURT:    All right.       Well, sometimes I get an
19 echo and sometimes I don't.       So I'll just repeat my question.
20 Have you talked to -- where is the other case pending?                In
21 what court?
22             MS. IACOVELLI:     Uxbridge District Court.
23             THE COURT:    A state court in Massachusetts?
24             MS. IACOVELLI:     Yes.
25             THE COURT:    Is that close to where you live?
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1              MS. IACOVELLI:     It's, you know, quite a -- I have to
2 get transportation to take me there, but it's within driving
3 range.
4              THE COURT:    All right.       So have you talked to that
5 lawyer who's representing you to ask his or her help in
6 finding an Indiana lawyer?
7              MS. IACOVELLI:     I haven't asked him to help find me
8 representation.      I only asked if he himself could represent
9 me.     He said he couldn't.
10             THE COURT:    I suggest that you circle back to him
11 and ask him to help you find a lawyer here in Indiana because
12 lawyers know how to do that, even if he can't represent you in
13 this matter.     He could help you find someone.
14             MS. IACOVELLI:     All right.
15             THE COURT:    And if you're not able to come for these
16 proceedings, you're still going to have to figure out a way to
17 get evidence before the Court in a way that the Court can
18 consider.    And it's got to be in some sworn fashion; not just
19 e-mails and not just correspondence, not just pleadings.
20             So you can either come and present evidence yourself
21 or you can present the evidence in that sort of written sworn
22 fashion, and the Court will take it into account in making a
23 decision, but it's never as effective as live witnesses, of
24 course.
25             Now, you did get the temporary restraining order.              I
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1 know you've established that fact that you have.              And
2 obviously from your filings, you disagree with what's been
3 said in the plaintiff's complaint and in the request for a
4 TRO.
5              But you still are subject to the Court's order that
6 I issued, and you don't appear to have either taken it
7 seriously or chosen to follow it.           And that's a very serious
8 matter when a person doesn't follow a court order because it
9 leaves you open to various sanctions or penalties.                And so you
10 don't have any choice over the matter after the order is
11 entered.
12             You have choice over what orders are entered.
13 That's because you can submit your own evidence for the Court
14 to consider, either in person or through the sworn statements.
15 But after an order is issued, you have to do what the Court
16 says you must do or else countenance various penalties or
17 coercive steps to make you comply.         So now do you understand
18 that?
19             MS. IACOVELLI:     Yes, Your Honor.      I'm sorry, I think
20 I misunderstood.     As I said before, I really did not have a
21 chance to read through every single page of this voluminous
22 pile of paper that was --
23             THE COURT:    Did you read my two-and-a-half page
24 order granting the TRO?
25             MS. IACOVELLI:     Yes, I did read that, Your Honor.          I
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1 was under the impression that that -- that this hearing today
2 would determine whether that goes into effect or not.
3              THE COURT:    No, it's in effect.       It was in effect
4 for the first ten days and it says that.            It says "This order
5 was issued at 6:20."       The question is whether it should be
6 extended, and whether it should be extended briefly in an
7 extension of the temporary restraining order, or if it should
8 basically blossom into, which means become a more fulsome
9 order in the form of a preliminary injunction that would be in
10 effect throughout the course of this litigation.
11             That's the question today, should I briefly extend
12 this temporary restraining order or should I turn this
13 temporary restraining order into a preliminary injunction.
14             MR. BERGERON:    Your Honor, we can barely hear you.
15 It sounds like you're away from the microphone.
16             THE COURT:    I'm speaking as loudly as I reasonably
17 can, but I'll try to repeat it again.
18             The question is whether to extend the temporary
19 restraining order for a brief period of time to allow you to
20 get evidence before the Court that I can properly consider in
21 deciding whether to grant a preliminary injunction.              The
22 preliminary injunction has a longer time span.            It lasts
23 longer, and it will extend at least for the foreseeable
24 future, perhaps as long as it takes for this case to be
25 litigated, which as you know sometimes can be a couple of
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1 years.
2              So it really is a matter of importance.           And so
3 that's why the Court has to decide because this initial order
4 is about to expire.       Under the Rules, it has a life span of
5 only ten days.      And that's why we set it on the Court's
6 calendar to decide whether it should be continued again,
7 extended again briefly to allow the parties to present
8 evidence on the preliminary injunction, or whether we should
9 move ahead and impose a preliminary injunction now that will
10 last on for the foreseeable future.
11             Do you understand that?
12             MS. IACOVELLI:     I understand now -- I understand it
13 now, Your Honor.     I apologize.    I didn't quite understand that
14 this had already been enforceable.
15             May I speak to the physician, the fact that I was
16 forcibly removed from my home on the basis of an e-mail that I
17 never sent, that I was subjected to the most traumatic
18 experience of being taken to a hospital and held against my
19 will for 24 hours, that this fabricated e-mail has inflicted a
20 degree of physical and emotional damage upon me, and I would
21 like to know why Dr. Eppley has waited all these many years to
22 object to my Internet activity.
23             THE COURT:    Well, I don't know the answer to that
24 and it doesn't have to be answered in this hearing.              I'm not
25 going to ask him that.      He is here in the room, and he's
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1 represented by lawyers.       But my question is not a question
2 that goes to the actual issues in dispute.
3              This is a preliminary matter.        That means the
4 lawsuit was just filed.       And the plaintiffs are asking for
5 preliminary relief to get you to stop putting information out
6 on the Internet, particularly with regard to an announced
7 suicide plan, as it's been represented to me, and some
8 suggestion or some actual statement by you that you would
9 undertake such drastic steps as that in order to get back at
10 him; and that such representations he alleges -- I'm not
11 making a decision, I'm just telling you what he alleges --
12 such representations by you when they are broadcast out on the
13 Internet bring damage to his ability to conduct his business
14 as a medical doctor.
15             People get on the Internet, as you know, and they
16 search around for information, and he has alleged that he is
17 being damaged by your statements.          So the Court issued this
18 order, and it says, and I'll read it to you now.             I'm not
19 going to read the conclusions, just the order.            It says "It is
20 therefore ordered, adjudged and decreed by the Court," and I'm
21 leaving out the citation to the Rules of Civil Procedure,
22 "One, that defendant," you, "Lucille Iacovelli" -- I'm
23 editorializing a little here -- "and those in active concert
24 and participation with you," and that would include your
25 colleague and associate who's there with you, and any other
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1 agents, including the man from Norway or someplace whose
2 e-mail you sent, that you, all of you, you personally and
3 people acting in active concert and participation with you,
4 shall take no action whatsoever to make, authorize or use
5 public statements, oral or written, on the Internet or
6 otherwise, including but not limited to:            A, further oral and
7 written expressions, videos or related depictions related to
8 statements concerning defendant, Lucille Iacovelli's, planned
9 suicide, including but not limited to descriptions of
10 preparatory actions, plans for autopsies, plans for recording
11 the event, and plans for publication and display of the
12 above-named activities to the extent that they are tied
13 directly or indirectly to plaintiff, Dr. Barry Eppley.
14             "And B, disparaging oral and written statements and
15 related publicity concerning the prior treatment of
16 defendant" -- that's you -- "by Dr. Eppley, including the
17 aftermath of such treatment, and any steps that you,
18 Ms. Iacovelli, may have taken to prevent Dr. Eppley from
19 carrying out your suicide plans by alerting mental health
20 authorities, and to forestall publication and dissemination of
21 such plans by seeking relief from this Court."
22             Those are the two things that I ordered in my
23 initial order of March 30th.       Now, just based on the materials
24 that you have provided and the plaintiffs have supplied, it
25 looks to me like you disregarded that order, that you've been
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1 out on the Internet talking about these matters in dispute,
2 and placing in public such statements, that is to say, public
3 statements, that threaten to injure Dr. Eppley's interests in
4 these ways.
5              And you've as much said that, in fact, you and
6 Mr. Bergeron have done that.        So that's why the plaintiffs
7 have come before me now and said, "Judge, they're not
8 following your order."
9              And it appears that that's the case.          So that's why
10 I've read it to you again.       Do you understand that,
11 Ms. Iacovelli?
12             MS. IACOVELLI:     Yes, Your Honor.      I have no control
13 over what someone in Norway puts on the Internet.
14             THE COURT:    But you do have control over --
15             MS. IACOVELLI:     I have absolutely no control over
16 that individual.
17             THE COURT:    But --
18             MS. IACOVELLI:     I have not asked him to put anything
19 on the Internet for me.      Whatever he did, he did of his own
20 accord, picking up information on his own.
21             THE COURT:    Well, he --
22             MS. IACOVELLI:     I will remove the posting that I put
23 today, but I would like to say that I did not make any -- I
24 did not disseminate any public plan of suicide.             And I want to
25 emphasize that, that I have never said that.
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1              Anything I have posted on the Internet, Dr. Eppley
2 and his attorneys have contorted and twisted things that I
3 have written into making it sound as if I were planning
4 suicide when if you read those things independently, it's
5 impossible to construe them in that manner.
6              There are countless people that post every day on
7 forums of final exit and right to die, physician-assisted
8 suicide.     Those people who say, you know, if I suffer in
9 unbearable pain or a condition that can't be treated, that I
10 would wish to end my life.       I mean, are we going to lock them
11 all up in a psychiatric hospital?          I mean, that's -- I have
12 the right to --
13             THE COURT:    Ms. Iacovelli, we have to stay on point
14 here.    I'm not going to resolve the disputes between you and
15 Dr. Eppley today.      What I want to make clear to you is that
16 you are subject to the Court's order not to be disseminating
17 this kind of information on the Internet or otherwise
18 yourself, or authorizing anybody else to do it as your agent
19 or on your behalf; people like Mr. Bergeron, for example.
20             So you can't do indirectly what the Court is
21 prohibiting you from doing directly.         And you have stated in
22 your filings to the Court that you have some sort of an
23 Internet business, some sort of a commercial Internet practice
24 that you engage in, and that apparently in conjunction with
25 that, you have put out various statements.
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1              I haven't looked at all the statements.           I don't
2 know what they are.       I'm not evaluating them.        I'm saying what
3 has been alleged by the plaintiffs, that you have placed in
4 the public view through your computer use and Internet
5 postings, materials that impugn the reputation and standing in
6 his profession of Dr. Eppley.
7              I understand that you have your complaints about his
8 care and so forth, but you're not entitled to put that
9 information out there in a way that injures him when he
10 believes it's false and when he believes you're doing it
11 maliciously.
12             So the primary thrust of this order is to keep you
13 from doing it.     And as I said, you can't authorize somebody
14 else to do it either.      So I think you will be in compliance
15 with my orders if you stop posting stuff about Dr. Eppley,
16 just pure and simple.
17             Now it is the nature of a lawsuit that in order to
18 prove their case, the plaintiffs are going to be able to take
19 depositions, do discovery, conduct investigations to find out
20 if, in fact, you did post those notices and those messages on
21 the e-mail.     That's a pretty easy thing.        I mean, it's not
22 cheap and it's not efficient, but it's a pretty easy thing to
23 do to figure out where most postings originate, or whether or
24 not they came out of your computer and out of your own work in
25 accessing the Internet.
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1              One of the ways to do that, of course, is to just
2 conduct a forensic examination on your computer.              If you're
3 not able to comply with the Court's orders that restrict you
4 from making these kinds of disseminations of statements that
5 are covered in my order that it's been alleged are injurious
6 to Dr. Eppley, then the Court has to resort to certain
7 measures to bring about your compliance with my orders.
8              I don't know what the orders would be necessarily,
9 but I can tell you that they might include seizing your
10 computer, because if it becomes the instrument in which you
11 violate the Court orders, the Court would be permitted to do
12 that.    And there are a lot of other sanctions that the Court
13 can impose and enforce that will bring about the
14 accomplishment of the orders that are issued.
15             So this is not optional with you.         When the Court
16 issues an order, you have to do just like anybody else in a
17 litigation who's the subject of an order and that is hop to.
18 You have to do what the Court requires of you.
19             And it doesn't matter after the order's issued
20 whether it's something that you wholeheartedly agree with or
21 think is fair or wise.      That's why we have hearings so the
22 Court can figure out in advance what's fair and wise and
23 legal.
24             But I'm having trouble getting you to get the
25 evidence before me that I can consider in weighing and
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                                                               21

1 evaluating what you say.        If it is true that you never issued
2 any e-mails or Internet postings or whatever, any electronic
3 transmissions about an intended suicide, you can represent
4 that fact in a sworn statement.         And if you know who did it,
5 you can represent that in a sworn statement, that it wasn't
6 you, but it was somebody else.
7              I don't know who else would know to say that.             There
8 could be people who are just doing things to hassle you.                   I
9 just don't know all of that.        But you have to state what the
10 facts are on your behalf in a way that I can consider.               And so
11 far, I don't have any evidence to that effect.            I just have
12 your sort of conversational submissions, although you've put
13 some things in a pleading in terms of an answer to the
14 complaint and a counterclaim.       But as I said, it's not
15 verified.    It's not sworn to.     So I can't take it as factually
16 true.    I take it as your legal position, but not as cognizable
17 fact.
18             So now that you understand that this order is an
19 enforceable order and the Court intends to order it, can you
20 indicate to me that you understand that and you intend to
21 abide by it?
22             MS. IACOVELLI:     Yes, Your Honor.      I will abide by
23 your order to the most extent that I can.           I will remove what
24 I wrote about this -- about the actual complaint.             And I mean,
25 that's as much as I can do.       That's -- am I understanding this
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                                                               22

1 correctly, that that's what is required here?
2              THE COURT:    I'm requiring that you comply with my
3 order that you have a copy of, and as I've read it to you,
4 fully and completely.
5              MS. IACOVELLI:     Yes.
6              THE COURT:    Fully and completely, Miss Iacovelli.
7 So withdrawing the postings that you make reference to is
8 probably one good first step, but then you have to refrain
9 from putting any other postings out there.
10             MS. IACOVELLI:     Your Honor, I'm sorry.        I'm getting
11 an echo here.     I don't have any control over what the man in
12 Norway does.     I have absolutely no -- and he has written to me
13 and told me, "You have no control over what I write."
14             THE COURT:    Well, you have control over yourself,
15 don't you?
16             MS. IACOVELLI:     I can certainly ask him not to
17 continue.
18             THE COURT:    Ms. Iacovelli.
19             MS. IACOVELLI:     I can ask him to take down what he's
20 done.
21             THE COURT:    Miss Iacovelli, can you hear me?
22             MS. IACOVELLI:     I can --
23             THE COURT:    Can you hear me?
24             MS. IACOVELLI:     Yes.
25             THE COURT:    You have control over yourself, don't
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                                                                23

1 you?
2              MS. IACOVELLI:     I'm sorry?     Excuse me?
3              THE COURT:    You have control over yourself, don't
4 you?
5              MS. IACOVELLI:     I'm sorry, Your Honor, I didn't
6 hear.     I only heard something "yourself."
7              THE COURT:    Okay, I'll say it again.         You have
8 control over yourself, don't you?
9              MS. IACOVELLI:     I have control over myself, yes.
10             THE COURT:    So you can stop putting information out
11 on the Internet about your dispute with Dr. Eppley, can't you?
12             MS. IACOVELLI:     Yes, Your Honor, I will -- I -- as I
13 said, I will remove that, but that's what I'll do.
14             THE COURT:    Okay, but I'm talking about two things
15 you can do.     You can remove it, and you can stop doing it in
16 the future.     Can't you do both of those things?
17             MS. IACOVELLI:     Yes, Your Honor, I can do those
18 things.
19             THE COURT:    All right.       And you can direct
20 Mr. Bergeron, your friend, not to pick up where you've left
21 off here, because he can't.       He is -- he is there, your
22 friend, and he wants to help you obviously, and so he becomes
23 your agent or your associate.       You can't just wink at the fact
24 that he's going to do something you can't do.
25             Do you understand that?
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                                                               24

1              MS. IACOVELLI:     Yes, I understand.
2              May I ask a question --
3              THE COURT:    Yes.
4              MS. IACOVELLI:     -- about part of this order?
5              THE COURT:    About what?
6              MS. IACOVELLI:     About a certain requirement of your
7 order.
8              THE COURT:    Yes.
9              MS. IACOVELLI:     The part about my planning an
10 autopsy, that was something actually that I discussed with a
11 plastic surgeon in Boston, and he actually presented that
12 information in a documentary film that was on HBO.               And he
13 says in the film that he agreed to perform my autopsy.               And I
14 have under -- I'm donating my body to Boston University
15 Medical Center.
16             And he said, "Thereupon we will find out, after she
17 dies, if anything was done in her surgery that might have
18 caused her physical problems."       Now, that is -- that film came
19 out -- excuse me, in 200-, I believe it was 2006.
20             THE COURT:    Are you speaking to me now?
21             MS. IACOVELLI:     I want to know -- I don't understand
22 how Dr. Eppley -- how that could -- he has anything to do
23 with, you know, whether the results of an autopsy is made
24 public or not, or the paper's published on it or not.
25             THE COURT:    Well, the answer to that question is
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                                                               25

1 two-fold as best I can tell.        One is that if you use that
2 conversation with the Boston doctor as a way to attack or
3 damage or disparage Dr. Eppley, then that would be in
4 violation of my order; if you are doing that.
5              If the doctor is saying he's going to do an autopsy
6 just to see, but it is not intended to damage or disparage
7 Dr. Eppley in his business, and you didn't have any role in
8 that dissemination of information, it's likely not to be
9 within my order.
10             So you can tell pretty much whether you're playing
11 some role in the ongoing negative comment and publicity about
12 which Dr. Eppley has complained in his lawsuit.             This is not a
13 big mystery.     You can tell this if you look at it with your
14 eyes wide open about whether or not this is something you and
15 your agents and your people acting in concert with you are
16 doing.
17             If it's a random act out there, if Dr. Eppley gets
18 complained of by somebody that's not connected with you,
19 either directly or indirectly, it's not part of this
20 litigation.     I can't extend the Court's powers to that extent,
21 but I can extend the Court's powers within the boundaries of
22 this lawsuit.
23             Do you understand?
24             MS. IACOVELLI:     To tell you the truth, Your Honor,
25 I'm a little bit confused here, because I --
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                                                               26

1              THE COURT:    Well, this is why you need a lawyer,
2 because your lawyer needs to talk to you about it.                You know,
3 the Court usually issues orders and doesn't interpret them.
4              MS. IACOVELLI:     There's also a person, Erica Hahn
5 (phonetic) that's named in this and she -- I don't -- she's
6 never said anything about Dr. Eppley.           I don't even know why
7 she's named in this.
8              THE COURT:    Who is that?
9              MS. IACOVELLI:     You know, I don't understand how
10 this man can try to not only silence me which, if he has
11 anything to say, you know, about what I write about him, you
12 know, he should have approached me personally.            I'm very
13 reasonable, believe it or not.       But these other two people, I
14 just -- I don't even know where that comes from.
15             THE COURT:    Well, we can't resolve all that,
16 Ms. Iacovelli, and I don't know the answers to all of these
17 questions.     I believe the person you mentioned is a
18 videographer who apparently -- whose name became known to the
19 plaintiff and the plaintiff's lawyers because it was thought,
20 presumably, that she would be enlisted by you to create video
21 depictions in a way that would be used and posted on the
22 Internet to damage Dr. Eppley's legal interests.             That's why
23 she was named.
24             So if you have not enlisted her, if you do not
25 intend to do that, that's just fine, but you shouldn't do it
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                                                               27

1 now because you're under a court order not to do it, among
2 other reasons.      Do you understand that?
3              Do you understand that, Ms. Iacovelli?
4              MS. IACOVELLI:     Yes, I understand it.
5              THE COURT:    I know you disagree with it.           I'm not
6 here to win you over.       That's not the purpose of this hearing.
7              The purpose of the hearing is to make sure you
8 understand that you're subject to the Court's powers with
9 respect to this order.       And if you don't comply with them,
10 then I'll have to do something either to coerce your
11 compliance or to punish you for your noncompliance.              It's a
12 very serious matter.      It couldn't be more serious.
13             MS. IACOVELLI:     Your Honor, I guess what I don't
14 understand here is just exactly what -- what is -- I mean,
15 what does he want me to do?       Take down what I wrote recently
16 about this whole thing?      About --
17             THE COURT:    Just a minute, Miss Iacovelli.
18             MS. IACOVELLI:     The suicide threat I never made?
19             THE COURT:    Miss Iacovelli?      Hey, are you listening?
20             MS. IACOVELLI:     Yes.
21             THE COURT:    It's what the Court has ordered you to
22 do.    When you say what does he want me to do, that's an
23 irrelevant question.
24             The question you should be asking and the question
25 you better get some legal advice on, in my opinion, is what
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                                                                28

1 has the Court ordered you to do.            That's what is binding on
2 you right now.
3              So you'll get your answer to the question if you
4 give a fair reading to the Court's order that I just read to
5 you, and you've said you've gotten, that was issued on
6 March 30th, 2009.
7              And I think you do understand that, don't you?
8 Don't you?
9              MS. IACOVELLI:     There was a little -- that was a
10 little garbled.     I'm not sure I -- I'm confused here, Your
11 Honor, about exactly what I'm supposed to remove here.
12             Am I supposed to take my whole website down?              Am I
13 supposed to -- I don't want to take my whole website down.                 It
14 does a great public service.       There's a lot of information
15 there about the dangers of cosmetic surgery in general.
16             THE COURT:    Ms. Iacovelli?
17             MS. IACOVELLI:     Yes.
18             THE COURT:    I'm going to say it one more time and
19 then I'm done explaining it to you, because I'm not your
20 lawyer.    I'm the judge who issued the order.           And I'm telling
21 you it's an enforceable order and it's about to be extended.
22             So the order says you can't put stuff on your
23 website that brings up these issues and implicates
24 Dr. Eppley's interests in the way I've laid them out in the
25 order.
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                                                                29

1              MS. IACOVELLI:     I'm sorry, Your Honor, can you --
2 excuse me, I can't hear this.        There's all kinds of static or
3 static here.      I'm sorry.
4              THE COURT:    Why don't you use a telephone instead of
5 the Internet connection?
6              MS. IACOVELLI:     I have a very hard time speaking on
7 the phone because of this -- the way the receiver is.                I can't
8 position my body in a comfortable way to breathe and speak on
9 the phone at the same time.        It's easier for me to wear this
10 ear --
11             THE COURT:    We've gone on for about an hour here, so
12 I have reason to believe that you sometimes understand
13 perfectly and sometimes you say you don't.            So I'm just going
14 to say it one more time.
15             Read my order and follow it unless you want to
16 countenance the Court's further orders that will either secure
17 your compliance or impose some penalty on you for your lack of
18 compliance.     And you better get the advice of a lawyer to help
19 interpret this if you continue to be confused.             And just take
20 it to your Boston or your Massachusetts lawyer there, and ask
21 him what that means.
22             MS. IACOVELLI:     All right, Your Honor.         I
23 understand.
24             THE COURT:    All right.       Now, I will extend the
25 temporary restraining order, because apparently you didn't
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                                                               30

1 understand that it was in full force and effect, for another
2 ten days.     And then I'll set a hearing on the preliminary
3 injunction.
4              That means you have ten more days where you're
5 abiding by this order but you can also put together your
6 affidavits and whatever other evidence you want to present to
7 the Court that go to the question of whether a longer-term
8 restraining order ought to issue.           We call that a preliminary
9 injunction.
10             I will make a final ruling on that in ten days.               If
11 you choose to come to Indiana or hire a lawyer and have the
12 lawyer appear for you at the hearing, that's when I'll
13 consider the evidence as to whether a preliminary injunction
14 ought to continue or ought to issue.
15             So, as I say, if you're going to represent yourself
16 pro se, you still have to get your evidence before the Court.
17 And if you don't, then I'll make the decision on the basis of
18 the plaintiff's evidence.       And that would be, from your point
19 of view, of course, one-sided.       But if you don't submit your
20 evidence, that's all I have to go on.
21             So this temporary restraining order is extended for
22 ten more days through and including April 17th, and on
23 April 17th, we will have our hearing here in court.
24             What time would that be, Miss Schneeman, 2:00 or so?
25             COURT CLERK:    Yes, let's say 2:00.
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                                                               31

1              THE COURT:    2:00, April 17, 2009, here in
2 Indianapolis.      And the Court will take up the issue of whether
3 to enter a preliminary injunction to restrain your activities
4 for the foreseeable future, and possibly throughout the
5 remainder of this litigation until there can be a final ruling
6 on the merits.
7              Do you understand that, Ms. Iacovelli?
8              MS. IACOVELLI:     Yes, Your Honor.
9              THE COURT:    I will take under advisement the request
10 for sanctions.     I'm granting the motion to prohibit
11 Mr. Bergeron from representing Ms. Iacovelli because he is not
12 a lawyer.    And if he continued, he would be proceeding as a
13 nonlawyer, and that would be an engagement in the unauthorized
14 practice of law.
15             Is there anything else before the Court,
16 Mr. Richardson, at this time that I ought to rule on?
17             MR. RICHARDSON:     There is one specific point, Your
18 Honor.    A website appeared on Saturday, April the 5th, I
19 believe, called "EppleyPlasticSurgerySucks.com."             We believe
20 it to be the work of Mr. Bergeron, and I don't know if he
21 would dispute it.      When we investigated it, it was registered
22 through an entity called Domains by Proxy, which shields the
23 identity of the person who does the creation.
24             I don't know if Mr. Bergeron will admit to being the
25 author of that website, but I know that Domains by Proxy will
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                                                                32

1 reveal the identity of the registrant if there's a court
2 order.
3              THE COURT:    All right.       Mr. Bergeron, if that is a
4 posting that you made in conjunction with, in concert with, in
5 support of Ms. Iacovelli, it has to come down as well.                 And
6 you are specifically within the reach of the Court's order
7 when you're doing things to advance her interests in this
8 litigation by basically violating the rights that Dr. Eppley
9 has asserted in this litigation.
10             Do you understand that, Mr. Bergeron?
11             MR. BERGERON:    Yes, Your Honor, the website itself,
12 the whole approach is protected by the First Amendment, I
13 believe.    And if you look at Proctor & Gamble Company versus
14 Banker's Trust Company, that notes that the private litigant's
15 interest in protecting the vanity --
16             THE COURT:    Mr. Bergeron, I'm having trouble hearing
17 you -- can you get closer to --
18             Can you get closer to the Internet or whatever it
19 is, the computer because I can't quite hear you?              You said
20 something about Proctor & Gamble.
21             MR. BERGERON:    Your Honor, I'd like to point you to
22 the case of Proctor & Gamble Company versus Banker's Trust
23 Company from the 6th Circuit in 1996, that notes that the
24 private litigant's interest in protecting the vanity of their
25 commercial self-interest simply does not qualify as grounds
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                                                               33

1 for imposing a prior restraint.
2              The website in question, I did author that website
3 and I will admit that I have, but the name itself of the
4 website and some of the content is legally protected by the
5 First Amendment.
6              THE COURT:    Mr. Bergeron --
7              MR. BERGERON:    What is subject to the Court order, I
8 will remove, but the website will remain.
9              THE COURT:    Mr. Bergeron, you're not a lawyer and
10 I'm not going to try to let you appear as a lawyer.              You're
11 not even a party to this lawsuit, so you can't appear in that
12 way either.
13             So I'm simply advising you that insofar as I know,
14 at this point, you're within the reach of my order, and
15 therefore, if that is your -- if that is your --
16             MR. BERGERON:    Your Honor, the connection just
17 went --
18             THE COURT:    Mr. Bergeron?
19             MR. BERGERON:    I can't hear a thing you're saying.
20             THE COURT:    Mr. Bergeron, I'm trying to give you
21 fair warning, sir.      Just listen.
22             You are, from all I can tell at this point, within
23 the reach of my order that prohibits and forecloses the kind
24 of Internet transmission and website that attacks Dr. Eppley's
25 interests, his business interests.
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                                                               34

1              If that is true, that you're the source of that
2 posting and if it is established that you have violated my
3 orders, you'll be subject to sanctions as well.
4              Are you still there?
5              MR. BERGERON:    Yes, Your Honor, we're here now.
6              THE COURT:    You will be subject to sanctions as well
7 for having violated my order, so --
8              MR. BERGERON:    Your Honor, I can craft it so it will
9 not violate your order.       And it's the website name itself that
10 is protected by a previous litigation that allowed those sites
11 as protest sites, or whatever subject they're involved in.
12             THE COURT:    Mr. Bergeron, you don't have standing to
13 argue the order with me.       I'm trying to give you fair warning
14 because if the plaintiff's lawyers determine that you have
15 violated my order, I have every reason to believe they'll come
16 back in and want me to impose a sanction against you for that.
17             So you should thank me for this because I'm giving
18 you fair warning that you also are subject to this order
19 insofar as I can tell at this point.         And you may say thank
20 you.
21             MR. BERGERON:    I understand that, Your Honor, and I
22 intend to comply with the order, but as far as removing the
23 website from the Internet, that will not happen.             It's my
24 First Amendment right to tell Lucille's story and the truth
25 behind what happened to her.
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                                                               35

1              The language of the order that says "disparaging
2 remarks," it doesn't even qualify for an order because
3 that's -- it's disparaging.        It's not defamatory remarks.            If
4 it was defamatory remarks, it would be a entirely different
5 story, and it might not be objectionable under the First
6 Amendment.      It's not disparaging remarks.
7              THE COURT:    You may find yourself out here having to
8 make that argument in open court, sir, but I'm not going to
9 hear your objections to it at this point because you do not
10 have standing to address the Court on the matter beyond my
11 simply giving you fair warning that you may be within the
12 reach of the order that the Court has already issued.              So.
13             MR. BERGERON:    I understand that, Your Honor, and I
14 will comply with that order.
15             THE COURT:    That's the end of that.        You may want to
16 get a lawyer for yourself, sir.
17             MR. BERGERON:    I am my own lawyer, Your Honor.
18             THE COURT:    Well, that's the problem.         You're not a
19 lawyer.    You're trying to act like one when you don't know
20 what you're talking about, frankly.         So I'll give you a word
21 of warning on that score, too.
22             Is there anything else that needs to be raised with
23 the Court?
24             MR. BERGERON:    Your Honor, may I also mention --
25             THE COURT:    Mr. Bergeron, just a minute.           I'm
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                                                               36

1 calling on Mr. Richardson.
2              MR. RICHARDSON:     Nothing further from us, Your
3 Honor.
4              THE COURT:    So we'll next convene to consider this
5 matter on the April 17th date at 2:00.           That completes the
6 hearing.     We are adjourned.
7                     (Court adjourned at 3:45 p.m.)
8
9 *************************************************************
10
11
12                     CERTIFICATE OF COURT REPORTER
13
14
15             I, Laura Howie-Walters, hereby certify that the
16 foregoing is a true and correct transcript from reported
17 proceedings in the above-entitled matter.
18
19
20 /S/LAURA HOWIE-WALTERS       June 26th, 2009
21 LAURA HOWIE-WALTERS, RPR/CSR
   Official Court Reporter
22 Southern District of Indiana
   Indianapolis Division
23
24
25

				
DOCUMENT INFO
Description: Judge Sarah Evans Barker, Dr. Barry Eppley, and Attorney Todd Richardson, of Lewis & Kappes are perpetuating an ongoing injustice in the Indiana federal courts designed to punish a disabled victim of poor plastic surgery for speaking the truth. These are the documents that outline this deceptive and malicious campaign to silence one of Dr. Eppley's most outspoken critics. Please go to www.suckssite.com to learn more.