VIEWS: 42 PAGES: 75 CATEGORY: Federal Court POSTED ON: 2/25/2010
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.
Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 1 of 75 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION DR. BARRY EPPLEY, MD, DMD, ) ) Plaintiff, ) CAUSE NO.: ) 1:09-cv-386-SEB-JMS ) Indianapolis, Indiana -v- ) July 1st, 2009 ) LUCILLE IACOVELLI, ) ) Defendant. ) Before the Honorable SARAH EVANS BARKER, JUDGE OFFICIAL REPORTER'S TRANSCRIPT OF HEARING FOR THE PLAINTIFF: Todd A. Richardson Joseph P. Rompala Lewis & Kappes 2500 One American Square Indianapolis, IN 46282 FOR THE DEFENDANT: (Pro Se) (Not Present) Court Reporter: Laura Howie-Walters, CSR/RPR Official Court Reporter 46 East Ohio Street Indianapolis, Indiana 46204 PROCEEDINGS TAKEN BY MACHINE SHORTHAND TRANSCRIPT PRODUCED BY ECLIPSE NT COMPUTER-AIDED TRANSCRIPTION Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 2 of 75 2 1 (Open court.) 2 THE COURT: Good afternoon, all. You may be seated. 3 Miss Schneeman, call the matter before the Court, 4 please. 5 (Call to order of the Court) 6 THE COURT: Okay, this matter is on the Court's 7 calendar for consideration of the plaintiff's motion for 8 contempt sanctions to be imposed against the defendant, and 9 perhaps others, acting collusively with the defendant, so it's 10 alleged, to violate the terms and requirements of the 11 preliminary injunction which the Court has previously entered. 12 The motion was filed, and thereafter, there have 13 been a spate of filings, some before the Court of Appeals, and 14 a few in our court. 15 As I look at the courtroom, I don't see anyone here 16 to represent the defendant. Is anyone here to represent the 17 defendant? If so, please identify yourself. 18 (Pause) 19 There is no one who's made their presence known. 20 Miss Schneeman, have you heard anything from the 21 defendants in terms of their appearance at this hearing? 22 COURT CLERK: I have not. 23 THE COURT: Correction, I should say "her" 24 appearance. 25 There was a request for the defendant to appear Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 3 of 75 3 1 telephonically at this hearing, and the Court denied that 2 motion in an entry that was made of record fairly late 3 yesterday afternoon. And because of the lateness of the hour, 4 a copy was e-mailed to Ms. Iacovelli so that she would know 5 that that permission has been withheld. 6 As stated in that order, we did permit her to appear 7 at the very initial hearing before the Court when the Court 8 had before it the temporary restraining order matter, and in 9 particular, whether to extend it for another 10-day period. 10 And for the exigencies outlined in that order that we issued 11 yesterday, the Court permitted it on that occasion, but for 12 other reasons, also laid out in that order, the Court has 13 deemed it important to abide by its previous direction to all 14 the parties that they had to appear in person because this is 15 expected to be an evidentiary hearing, and it's simply not 16 possible to proceed with the business before the Court if one 17 party is not present in person, that is to say, if one party 18 is appearing telephonically. So all of those reasons and that 19 discussion are laid out in the Court's order. 20 Mr. Richardson, let me just pause to make sure that 21 you are alert to the fact that the Court ruled on that. It 22 did come fairly late in the day yesterday. 23 MR. RICHARDSON: Thank you, Your Honor. We did 24 receive a copy of it, yes. 25 THE COURT: You picked it up off the electronic Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 4 of 75 4 1 docket, I assume? 2 MR. RICHARDSON: Yes, we did. And I would add we 3 have had no communication from the defendant one way or 4 another since that time. 5 THE COURT: Okay, good. That was going to be my 6 next question, had you heard anything. 7 I delayed some, about 15 minutes, before taking the 8 bench to see if anyone appeared for the defendant today. But 9 as I've stated, there does not appear to be anybody here to 10 represent the defendant's interests. 11 So, Mr. Richardson, I'll hear you on your motion. 12 MR. RICHARDSON: Thank you, Your Honor. 13 It's my understanding we're before the Court on all 14 pending motions, which, I believe, we have two pending 15 motions. 16 THE COURT: That is true. 17 MR. RICHARDSON: One is seeking contempt sanctions. 18 The other is a Rule 37 motion seeking sanctions for discovery 19 violations. The Court, I know, is familiar with the 20 background of this proceeding, so I'll attempt to move quickly 21 through the preliminaries. 22 The contempt motion has been pending since the time 23 that the temporary restraining order was still in force. The 24 Court has given the defendant and her associates every 25 opportunity to avoid sanctions and comply with the Court's Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 5 of 75 5 1 order. And as identified in the series of filings before the 2 Court, instead, the defendant and her associates have 3 continued to engage in willful violations. 4 And so, we would rely on the evidence of the 5 Internet activity and communications that have occurred since 6 the time the TRO and the preliminary injunction have been in 7 effect as set forth in the six affidavits of counsel that have 8 been previously filed in this action. 9 THE COURT: What's the date of the most recent 10 affidavit? 11 MR. RICHARDSON: The date of the most recent is 12 May 26th. 13 THE COURT: Will you supplement that at this 14 hearing? 15 MR. RICHARDSON: We are -- I was not planning on 16 making another supplement. We were going to characterize 17 through testimony the state of affairs as it is today. 18 THE COURT: Okay, I would appreciate it if you would 19 update -- 20 MR. RICHARDSON: Okay. 21 THE COURT: -- that one. 22 You can do it either in an evidentiary way today, 23 reciting for the record what has transpired since the facts 24 that you set out in the May 26th affidavit that, in 25 plaintiff's view, represent a violation of those orders. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 6 of 75 6 1 MR. RICHARDSON: Okay. 2 THE COURT: If that's -- if you're not prepared to 3 do that, and you want to do it in a written format -- 4 MR. RICHARDSON: No, we can do that, Your Honor. 5 THE COURT: That would be my preference. 6 MR. RICHARDSON: Okay, very good. 7 THE COURT: Just to bring it up to today, July 1st. 8 MR. RICHARDSON: Very good. And I do have copies of 9 the six affidavits. They are part of the Court's record. I 10 understand we would not have to label them and offer them into 11 evidence. 12 THE COURT: Right. 13 MR. RICHARDSON: But that's -- they form the 14 evidentiary basis for the contempt motion, which I'll note 15 there was an opposition filed by the -- or on behalf of the 16 defendant with regard to that motion. And there was no effort 17 to deny the factual basis set forth in the affidavits of 18 counsel that I just referred to. 19 And instead, the defendant and her associates have 20 been very blatant in asserting that yes, they are engaging in 21 violations and those violations are ongoing. 22 THE COURT: There are two general categories of 23 alleged violations of that order and grounds for contempt 24 sanctions. I just want to sort of structurally put it out 25 there this way so that you also speak in this context -- Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 7 of 75 7 1 MR. RICHARDSON: Thank you, Your Honor. 2 THE COURT: -- as best you can. 3 One is the violation that redound to the detriment 4 of the plaintiff directly that have to do with the merits of 5 the lawsuit and the underlying claims that have been made in 6 the complaint and the reason for coming to court in the first 7 place. 8 MR. RICHARDSON: Yes. 9 THE COURT: The relief that's sought in other words 10 by the plaintiff. That's one category of contempt. And the 11 other is the allegedly contemptuous behaviors towards the 12 Court -- 13 MR. RICHARDSON: Yes. 14 THE COURT: -- and the Court's authority. 15 MR. RICHARDSON: Yes. 16 THE COURT: And the apparent efforts to undermine 17 the Court's authority in issuing the orders and having them 18 followed -- 19 MR. RICHARDSON: Yes. 20 THE COURT: -- once they've been ordered. 21 MR. RICHARDSON: Yes, and we will -- both categories 22 are, of course, covered by the record as laid forth today. I 23 would say briefly with respect to those two categories, the -- 24 THE COURT: May I -- excuse me for interrupting, 25 Mr. Richardson. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 8 of 75 8 1 MR. RICHARDSON: Please go ahead. 2 THE COURT: Let me say with respect to the 3 allegations that involve the undermining of the Court's 4 authority and the impeding of the Court's ability to have its 5 judgments and orders fully effectuated, I state to you and for 6 the record that I will need to rely on the evidence that's 7 presented because I have made a concerted effort not to review 8 those matters that I'm told are available on the Internet. 9 MR. RICHARDSON: Understood. 10 THE COURT: So that my only source of information 11 with respect to those matters is as they are presented to me 12 as evidence. 13 MR. RICHARDSON: Okay, very good. Understood, Your 14 Honor. 15 THE COURT: Okay. 16 MR. RICHARDSON: And we will be prepared to present 17 you with a full record, perhaps fuller than Your Honor would 18 like to see. We have a whole binder of stuff that has been 19 published on the Internet. 20 THE COURT: All right. Well, I'll receive whatever 21 you tender. 22 MR. RICHARDSON: Okay. Thank you, Your Honor. 23 And we do have two live witnesses. Dr. Eppley is 24 here today. John Hicks is also present in the courtroom who 25 submitted an affidavit on the workings of the Internet and Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 9 of 75 9 1 will be prepared to speak to some of the remedies issues. 2 THE COURT: You may call your witness. 3 MR. RICHARDSON: Thank you. Dr. Barry Eppley, 4 please. 5 THE COURT: Good afternoon, Dr. Eppley. 6 THE WITNESS: Good afternoon. 7 BARRY EPPLEY, PLAINTIFF'S WITNESS, SWORN 8 9 DIRECT EXAMINATION 10 THE COURT: You may take the stand. 11 BY MR. RICHARDSON: 12 Q Good afternoon, Dr. Eppley. 13 A Good afternoon. 14 THE COURT: Mr. Richardson, that podium is on 15 castors so you can move it. 16 MR. RICHARDSON: The whole thing? Oh, you're right. 17 My goodness. 18 THE COURT: We're very modern here. 19 MR. RICHARDSON: It is. Thank you very much. 20 BY MR. RICHARDSON: 21 Q Good afternoon, Dr. Eppley. We'll try to be brief today 22 and not go over the points that we covered in your prior 23 testimony in the case. Since -- 24 THE COURT: Do you wish to have me incorporate that 25 testimony, though, in these proceedings? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 10 of 75 EPPLEY - DIRECT / RICHARDSON 10 1 MR. RICHARDSON: Yes, if we could, I don't know, 2 through a formal motion, but yes, we would like that to be 3 incorporated. I know Rule 65 specifically says that evidence 4 tendered in support of a preliminary injunction need not be 5 repeated at trial. And on that basis, we would request that 6 it be also considered in connection with this. 7 THE COURT: Okay. Well, I'll reserve a decision 8 about whether it's considered as part of the trial record, but 9 I will consider it as part of this issue currently before the 10 Court. 11 MR. RICHARDSON: Well, thank you very much, Your 12 Honor. Yes, we would like that. 13 BY MR. RICHARDSON: 14 Q Since the -- focusing on the time period since this 15 litigation began, have you continued to make financial 16 investment in promoting your name on the Internet? Well, let 17 me finish the question there, in promoting your name on the 18 Internet? 19 A Yeah, I would specifically refer to that rather than 20 promoting, really, as what we would call reputation 21 management, but the answer to that question would be yes. 22 Q And have you continued to have to struggle with the 23 problems presented by the Internet publications by defendant, 24 Ms. Iacovelli and her associates? 25 A Yes. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 11 of 75 EPPLEY - DIRECT / RICHARDSON 11 1 Q And can you quantify in any general way the level of 2 financial investment that you think you've had to make in 3 Internet services as a result of Ms. Iacovelli's publications 4 on the Internet? 5 A Yes, I can. 6 Q Okay. Please make such a estimation and explain the 7 basis. 8 A Sure. Well, what you do is you have to hire firms that 9 work, called search engine optimization, both for your 10 practice and your name, and I'd probably spend about 2- to 11 $3,000 a month. So that would be about anywhere from 24- to 12 about $36,000 a year just to do reputation management alone. 13 Q And is that more than you think you would have had to 14 spend had it not been for the publications by Ms. Iacovelli 15 that are the subject matter of this action? 16 A Well, I wouldn't have had to spend that at all. 17 Q Okay. And since the time the litigation began, did you in 18 fact -- 19 THE COURT: Hold on just a minute. 20 MR. RICHARDSON: Yes. 21 THE COURT: Would you explain that to me, why you 22 wouldn't have had to spend that at all? I mean, I assume 23 you'd have a website or something even if this -- if the 24 circumstances in this litigation didn't prevail. 25 THE WITNESS: Yeah, obviously there are baseline Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 12 of 75 EPPLEY - DIRECT / RICHARDSON 12 1 expenses that you have for a website and marketing and so 2 forth. But what we're talking about is what you spend on what 3 I call reputation management, above and beyond what you would 4 normally do in Internet practice and promotion. 5 THE COURT: So you hired a firm that does this 6 reputation management? 7 THE WITNESS: Yes. 8 THE COURT: Specifically to offset the detrimental 9 publicity that's out there, information? 10 THE WITNESS: Absolutely correct. 11 THE COURT: Okay. 12 THE WITNESS: Well, you don't get rid of what's out 13 there. All that you can do is try to put enough out there 14 about yourself that at least you don't get completely 15 overwhelmed by the negative. 16 THE COURT: So what kind of information are they 17 publicizing? 18 THE WITNESS: Well, what they do is they take -- and 19 I have to provide them, so I have to do this every day. For 20 example, I have a daily blog that I have to do, so I write 21 about topics and plastic surgery. They take and optimize your 22 website. They link it to their sites. So it's just all about 23 getting more and more of your name out there, more content 24 about yourself in an effort to outpace or outrace the other 25 content that's out there. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 13 of 75 EPPLEY - DIRECT / RICHARDSON 13 1 THE COURT: I see. Go ahead. Sorry, 2 Mr. Richardson. 3 MR. RICHARDSON: Thank you, Your Honor. 4 BY MR. RICHARDSON: 5 Q Since the time the litigation began, did you, in fact, 6 receive a certificate of registration from the United States 7 Patent and Trademark Office for federal trademark rights in 8 your name, Dr. Barry Eppley? 9 A Yes, I did. 10 Q If I may show you (indicating); please look at what's been 11 marked as Exhibit 5. Is that a copy of your registration? 12 A Yes, it is. 13 Q Thank you. 14 MR. RICHARDSON: I'd like to offer that into 15 evidence, Your Honor? 16 THE COURT: All right. Exhibit 5 is admitted. 17 (Plaintiff's Exhibit 5 was received in evidence.) 18 MR. RICHARDSON: Thank you. 19 BY MR. RICHARDSON: 20 Q Since the time the litigation began, have you continued to 21 encounter adverse publications regarding -- 22 THE COURT: Why don't you tell me what the date of 23 that registration is so I don't have to go back and look it 24 up. 25 THE WITNESS: Registered April 7th, 2009. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 14 of 75 EPPLEY - DIRECT / RICHARDSON 14 1 THE COURT: Okay, thank you. Now go ahead. 2 MR. RICHARDSON: Thank you. 3 BY MR. RICHARDSON: 4 Q Since the time the litigation began, Dr. Eppley, have you 5 continued to see Internet publications about you from 6 Ms. Iacovelli and her associates? 7 A Yes. And, if anything, I would have to say this problem 8 has become magnified by several fold as opposed to when we 9 started. 10 Q And could you explain that? 11 A Well, because of her and her associates, now they've just 12 created more websites, more content out there than ever 13 existed before. 14 Q And let me ask you about the time period prior to the 15 commencement of litigation. Did you at any time make efforts 16 to reach out to Internet service providers and Internet 17 hosting -- website hosting organizations -- to attempt to 18 secure their cooperation in taking down some of 19 Ms. Iacovelli's publications? 20 A Yes, I've tried that virtually on every website service 21 provider, Internet service provider, that any of that content 22 was on. 23 Q Okay. And could you describe generally what your 24 experience has been prior to the commencement of litigation? 25 A My experience before that was zero. The bottom line is Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 15 of 75 EPPLEY - DIRECT / RICHARDSON 15 1 nobody was -- 2 THE COURT: You mean your success was zero? 3 THE WITNESS: I'm sorry, yes. Nobody would take 4 down anything prior to the commencement of the litigation. 5 BY MR. RICHARDSON: 6 Q And have you continued since the litigation began to make 7 efforts to ask third-party service providers to take down 8 Ms. Iacovelli's publications? 9 A Yes. Using the temporary restraining order, I have had 10 some success doing that on what I would consider to be some of 11 the smaller type players. But when you come into the big 12 players like Google, Yahoo, MSN, they are not responsive. 13 Short of -- basically what they'll tell you is, short of this 14 abeing a felony, they are not going to take anything down and 15 they need more persuasion. 16 Q Okay. Did they actually say "felony" or is that your 17 paraphrase? 18 A Well, the specific ones they use, unless it's child 19 pornography or drug trafficking, a crime of that nature, they 20 are not going to take it down unless they are so ordered. 21 Q Unless they are so ordered? 22 And in your effort since the time the litigation has 23 began, have you succeeded in getting some of the publications 24 taken down? 25 A Yes, we've succeeded in some, as I've said, on some of the Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 16 of 75 EPPLEY - DIRECT / RICHARDSON 16 1 smaller type services, but not the big ones that are owned by 2 Google. 3 Q Could you give examples of some where the success has been 4 met? 5 A Yes, ones like WordPress, which is a free blog service; 6 Vimeo, which is a free video posting service, One Free 7 (phonetic), another free blog service called Bravenet. So 8 some of what I would call the smaller players. 9 Q And -- okay. 10 And as things stand now, are there still 11 publications by Ms. Iacovelli out there on the Internet that 12 patients, prospective patients, and members of the medical 13 community and community at large will review if they Google 14 your name, Dr. Barry Eppley? 15 A Yes. And I think probably as I alluded to before, as we 16 sit here today, the problem unfortunately is worse than when 17 we started. This has become a mission, a passion of her and 18 her colleagues. They've even taken sites using my very own 19 name, and created them, placed them on servers that don't even 20 exist within the United States, which potentially could make 21 it impossible to ever have them removed. 22 So we're actually -- to answer your question 23 succinctly, we're in a worse state today than when we ever 24 started. 25 Q And in order to remedy that -- I know what I was going to Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 17 of 75 EPPLEY - DIRECT / RICHARDSON 17 1 ask. 2 In connection with that last question, I asked you 3 about, specifically, Internet publications that relate to you 4 and your surgery you provided to Ms. Iacovelli. To your 5 knowledge, are there also still in existence websites that 6 criticize the Court, that address the subject matter of this 7 lawsuit as a topic of discussion, and that target the 8 participants in the legal proceeding as a focus of editorial 9 comment? 10 A Well, certainly if you look at the flavor of all of these 11 postings from the time we commenced these proceedings, they 12 definitely -- there is a greater preponderance of those that 13 exist today that are about the lawsuit proper, against what -- 14 you know, talking about what the lawsuit is, talking about the 15 participants in it, talking about the judge. 16 You know, so clearly, probably, there is more -- 17 more that relate to the lawsuit proceedings now at this point 18 than ever specifically relate to whatever her alleged problem 19 was to begin with. 20 Q And just to be crystal clear, as we sit here right now, 21 there is still in existence a set of publications accessible 22 over ordinary search efforts on the Internet that relate to 23 the surgery in 2001 and the aftermath of your surgery of 24 Ms. Iacovelli, those are in existence. 25 And in addition, there's another set of publications Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 18 of 75 EPPLEY - DIRECT / RICHARDSON 18 1 and websites that are devoted to addressing the subject matter 2 and merits of the litigation, the Court, and the participants 3 as litigants. 4 Is that an accurate paraphrase? 5 A Correct, which is why I say when you put the aggregate 6 together why it's worse off now than what it was months ago. 7 Q Okay. In terms of -- 8 THE COURT: Just a minute. I need to ask a 9 question. 10 Be more specific in terms of how you know this. 11 What do you mean when you say it's worse? Is it worse because 12 of volume? Is it worse because of the tenor of them? Do you 13 make your own searches to know this? What's the source of 14 your conclusions that you've just testified to? 15 THE WITNESS: Sure. 16 First of all, the sheer volume is substantially 17 higher. I don't know what the numbers would actually be, but 18 if you compare it to what it was before the lawsuit -- 19 THE COURT: And how do you know that? 20 THE WITNESS: By doing searches myself. All I have 21 to do is Google up my name, and this is how you find 22 everything. But the volume is probably three times today what 23 it was when we started. 24 Certainly the tenor -- 25 THE COURT: Volume? You mean when you get into Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 19 of 75 EPPLEY - DIRECT / RICHARDSON 19 1 Google and they list all the places that there's a reference 2 to the cited name, which is your name, that instead of there 3 being, let's say, 10 items in the Google search, there are now 4 30 or something like that? 5 THE WITNESS: Correct. 6 THE COURT: And each one of those is a different 7 website? 8 THE WITNESS: They'll either be a different website, 9 or there will be a different posting inside the website. 10 THE COURT: And can you tell from your review of 11 those postings that have occurred, let's say, since the time 12 of the lawsuit? 13 THE WITNESS: Oh, yeah, because they are all dated. 14 THE COURT: They are dated? 15 THE WITNESS: If you look at the citations, you can 16 see when they were posted. 17 THE COURT: So some of those matters that you've 18 accessed and read have been since the entry of the TRO; is 19 that right? 20 THE WITNESS: Oh, yes. 21 THE COURT: And since the preliminary injunction as 22 well, is that right? 23 THE WITNESS: Correct. 24 THE COURT: And are they of the same tenor, that is 25 to say, critical of you and your work and your reputation and Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 20 of 75 EPPLEY - DIRECT / RICHARDSON 20 1 so forth? 2 THE WITNESS: Oh, yes, and the very fact that I 3 would even hire an attorney, you know, just further casts 4 negative aspersions against me. But it's -- you know, it's 5 everything against my attorneys. It's against you. It's 6 against the Court. It's against the way Indiana law is done, 7 you know, anything and everything. 8 And that's why, because so much of it now is about 9 the lawsuit, you know, that's why the volume is so much 10 higher. There's so much more material. 11 THE COURT: Have you printed those off? 12 MR. RICHARDSON: We have printoffs of -- yes. 13 THE COURT: Do you intend to introduce -- 14 MR. RICHARDSON: We intend to offer them at this 15 hearing. 16 THE COURT: Okay. Go ahead then with your 17 questions. 18 BY MR. RICHARDSON: 19 Q Dr. Eppley, based on your experience with trying to get 20 publications taken down off the Internet, and dealing with 21 Ms. Iacovelli over a period of time, what would you see as 22 potentially effective as a remedy to conclude this litigation? 23 A Well, and I'll use Google as an example just because 24 Google is the biggest provider on the Internet, and they 25 certainly have the strictest rules of how they'll deal with Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 21 of 75 EPPLEY - DIRECT / RICHARDSON 21 1 material that people consider offensive. 2 If you use their criteria, short of a court order, 3 they are not going to take the material off; or short it being 4 part of a crime, they are not going remove it. So if 5 something's offensive, if it's libellus, if it's slanderous, 6 even if it's copyright infringement, they are not going to 7 take it off. They specifically tell you this is an issue 8 between you and whoever posted it, and you need to settle that 9 on your own. 10 Q Do you have reason to think that they will honor a court 11 order that specifically directs them to remove content? 12 A That's a legal question. I don't know. 13 Q It's an unfair question, I apologize. 14 A I mean I'm assuming they have to comply with U.S. law. 15 That I don't know. 16 Q Dr. Eppley, are you seeking any financial compensation 17 against Ms. Iacovelli at this point? 18 A Yes. 19 Q And what would you -- what type of compensation are you 20 seeking? 21 A Well, I would certainly like to get compensation for legal 22 costs, as well as the extra money that I've had to put forth 23 to do my reputation management. 24 Q And are you seeking anything else at this time in terms of 25 sanctions or relief from the Court? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 22 of 75 EPPLEY - DIRECT / RICHARDSON 22 1 A You mean in terms of dollars? 2 Q No. In terms of the Court -- this matter's before the 3 Court on several motions. The Court has very wide discretion 4 on the relief that's going to be granted. 5 Let me ask you this: Do you have a specific request 6 or proposal with respect to Mr. Bergeron? 7 A Well, I would like anything that he has posted to be 8 removed. That's really -- as it relates to her accomplice and 9 accomplices, that is really what I would like. I would like 10 that content to be removed, and future content to not be 11 allowed to be put up. 12 Q Very good. Very good. I think I have no further 13 questions, Dr. Eppley, at this time. 14 THE COURT: All right. You may step down, sir. 15 Your next witness? 16 MR. RICHARDSON: We would like to call Tabitha 17 Lucas. 18 THE COURT: As a witness? 19 MR. RICHARDSON: Yes. 20 THE COURT: Go ahead and put them down (indicating). 21 And would you retrieve that exhibit that's on the desk there, 22 too, please? 23 TABITHA LUCAS, PLAINTIFF'S WITNESS, SWORN 24 25 Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 23 of 75 LUCAS - DIRECT / RICHARDSON 23 1 DIRECT EXAMINATION 2 THE COURT: You may be seated. Watch your step. 3 BY MR. RICHARDSON: 4 Q Good afternoon, Ms. Lucas. Could you give your name, 5 please, for the record. 6 A My name is Tabitha Jane Lucas. 7 Q And are you a summer associate at Lewis & Kappes? 8 A Yes. 9 Q Are you currently a law school student? 10 A Yes. 11 Q At what school? 12 A Indiana University-Bloomington. 13 Q And as part of your responsibilities as a summer associate 14 at Lewis & Kappes this summer, have you made an effort to 15 monitor and compile the updates to Ms. Iacovelli's 16 publications since the time the litigation began? 17 A Yes. 18 Q And could you please explain how you went about doing 19 that? 20 A We had a number of sites that we had a list from before I 21 started working that I continued to check to see if she put up 22 dates. In addition, I ran many searches involving the 23 various -- the names of the various parties. And I continued 24 to check the websites on a fairly regular basis looking for 25 new postings and that sort of thing. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 24 of 75 LUCAS - DIRECT / RICHARDSON 24 1 Q Okay. And how did you -- and what work product did you 2 generate from those efforts? 3 A I printed off what I found. 4 Q And what is it exactly that you printed off? 5 A I printed off pages from the websites, including new 6 postings, and new websites that we found. 7 Q Okay. So these are all new postings since the beginning 8 of the lawsuit; is that right? 9 A There may be some postings that are not new. Sometimes 10 they don't have a date on them, and it's difficult to tell 11 when they were posted. Some of them certainly are new. 12 THE COURT: But they are up-to-date as of when? 13 THE WITNESS: I checked all of the websites and made 14 a list of what was -- what was still on the web. She has 15 removed some things -- Ms. Iacovelli -- I don't know who 16 removed them. A number of the websites have been removed, but 17 I made a list of what had been there previously and what is 18 there right now as of this morning. 19 THE COURT: Okay. Thank you. 20 BY MR. RICHARDSON: 21 Q And I'm sorry, that was as of this morning -- 22 A Yes. 23 Q -- was the update? 24 Did you keep track of materials that had been 25 present before and were no longer present on the Internet? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 25 of 75 LUCAS - DIRECT / RICHARDSON 25 1 A Yes. 2 Q And how did you record those instances? 3 A I made a list. 4 Q And is that a separate list that's in your folder? 5 A Yes. 6 Q Could you please separate in your folder the -- anything 7 that's not the printoffs of materials from the Internet, but 8 instead lists that you generated yourself? 9 And watch out for the microphone. 10 A I have already removed -- 11 Q You've done that? Okay. 12 MR. RICHARDSON: And I'm sorry we haven't applied a 13 sticker to it, but I would like to offer into evidence the 14 entire folder of materials identified by Ms. Lucas as new 15 materials posted since the lawsuit began. 16 THE COURT: Okay. Wait, are these printoffs from 17 the computer? 18 MR. RICHARDSON: Yes. 19 THE COURT: And are you bringing them -- are you 20 proffering them as a single exhibit? 21 MR. RICHARDSON: I would like to, yes, offer them as 22 a single exhibit as a collection, I guess, is what the word 23 would be. 24 THE COURT: Would you like to give it an exhibit 25 number? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 26 of 75 LUCAS - DIRECT / RICHARDSON 26 1 MR. RICHARDSON: Yes. It would be Exhibit No. 6, I 2 believe. 3 THE COURT: Okay. It's the compiled print-offs, 4 right? 5 MR. RICHARDSON: Yes, compiled print-offs. 6 BY MR. RICHARDSON: 7 Q Then Ms. Lucas, what else do you have with you? 8 THE COURT: Now, wait. I'm going to admit this, but 9 I want you to ask her some additional questions about how she 10 made this exhibit. Where did it come from? 11 (Plaintiff's Exhibit 6 was received in evidence.) 12 BY MR. RICHARDSON: 13 Q Okay. Could you explain physically how you arrived at and 14 selected pages to be included in this exhibit? 15 A I looked at searches -- I looked at websites that we had 16 already seen content from. 17 THE COURT: So did you access through Google? 18 THE WITNESS: Yes, I typed in -- 19 THE COURT: I want you to tell me step by step what 20 you did. 21 THE WITNESS: Okay, we had -- I did different 22 things. We had the actual websites, so I put the web address 23 into the browser, clicked on it, and went to that address. 24 THE COURT: What web address? 25 THE WITNESS: There were -- we had a list. Our firm Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 27 of 75 LUCAS - DIRECT / RICHARDSON 27 1 had a list of sites that we knew that she continued to post 2 new postings on. And I took that web address, and I put it in 3 the browser, and then I clicked and went to that address. 4 In addition, I ran searches through ask.com putting 5 in words like, you know, "Dr. Eppley," "Iacovelli," various 6 words I thought may be associated with the defendant. 7 THE COURT: And so you gathered up whatever you 8 found there and printed it? 9 THE WITNESS: Yes. 10 THE COURT: Okay. So about -- have you numbered the 11 pages? Do you know how many pages you have there in your 12 exhibit? 13 THE WITNESS: I have not numbered them. 14 THE COURT: Did you copy all the material or just 15 the first page in those when you found something? 16 THE WITNESS: I copied all of the material once 17 so -- because, for instance, there may be a site in which she 18 continues to post updates. I may have the website, the whole 19 website, and then I may go back and just print the first page 20 if she just changed the first page. 21 She posts frequently, and it's difficult to keep up 22 with the changes that she makes. 23 THE COURT: Would you say from your examination she 24 posts every day or every week or -- 25 THE WITNESS: Until very -- until about a week Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 28 of 75 LUCAS - DIRECT / RICHARDSON 28 1 before today, she posted about every -- it did depend, but 2 maybe every three days, and sometimes she'd post every day, 3 sometimes she'd go longer. 4 She has not recently posted anything. I would say 5 in the last week, I don't think she's posted anything new, 6 though she has removed sites. And because it is so difficult 7 to keep up with her postings, there may be some mixture of 8 previous material and new material. It may be on the same 9 website. I did make a list of what was new. There's a 10 date -- there are dates on most of the sites, but not on every 11 site. 12 MR. RICHARDSON: If I may, to clarify? 13 THE COURT: Maybe if I saw the exhibit, I could 14 tell. 15 BY MR. RICHARDSON: 16 Q Well, I was just going to make the point: You were 17 tracking against a compendium that you already started with 18 website materials that we had at the beginning of the case; is 19 that correct? 20 A Yes. 21 Q So what you're talking about is new since the litigation 22 and not everything as of a point in time; is that correct? 23 A I'm sorry? 24 Q So what you were tracking, you were looking for new stuff? 25 THE COURT: We're talking about what's in Exhibit 6? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 29 of 75 LUCAS - DIRECT / RICHARDSON 29 1 MR. RICHARDSON: Yes, Exhibit 6. 2 THE COURT: Put it in those terms. 3 MR. RICHARDSON: I'm sorry? 4 THE COURT: Put it in those terms. 5 MR. RICHARDSON: Oh, thank you, Your Honor. 6 THE COURT: Then it defines the universe. 7 BY MR. RICHARDSON: 8 Q In Exhibit 6, do those materials consist only of 9 materials, to the best of your ability, that were generated 10 since the commencement of the litigation, as opposed to 11 everything that she had posted as of a particular date and 12 time? 13 A No, but I have a list, and I can separate out what is new 14 and what is not. 15 Q Okay. And is that the same list that you referred to that 16 you keep track of the omissions on? 17 A I have three lists. I have -- one list is new postings 18 since March. One list is what she has removed and what 19 remain -- what she has removed that we consider relevant and 20 what is still there. And one list is just what is still there 21 at this moment as of this morning. 22 Q Okay. And do you have all three of those lists present? 23 A Yes. 24 Q And if we could mark those three lists as Exhibits 7, 8, 25 and 9? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 30 of 75 LUCAS - DIRECT / RICHARDSON 30 1 THE COURT: Yes. 2 MR. RICHARDSON: I would offer those as well, Your 3 Honor, as summaries. 4 THE COURT: Well, we have to give a number for each 5 one. 6 MR. RICHARDSON: I believe. 7 THE COURT: Identify them. 8 MR. RICHARDSON: So let's take -- 9 THE COURT: Which list is going to be 7? 10 BY MR. RICHARDSON: 11 Q What's the top most list that you have? 12 A Sites in which there have been postings or links since 13 March. 14 Q Okay, that's No. 7. What's the name of the second list? 15 A Sites containing -- that are -- sites on the Internet 16 containing defamatory content as of July 1st, 2009. 17 Q As of current? That will be No. 8. 18 And then the third? 19 A Sites containing defamatory content, including removals. 20 THE COURT: Including what? 21 THE WITNESS: Including removals. 22 Q And that will be No. 9. 23 THE COURT: Let's get some numbers on these. 24 MR. RICHARDSON: Okay. Joe, can you help us with 25 physically getting numbers on them. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 31 of 75 LUCAS - DIRECT / RICHARDSON 31 1 THE COURT: Have you got some stickers? 2 MR. RICHARDSON: I neglected to bring some. 3 THE COURT: I think Ms. Schneeman has some stickers. 4 She hardly ever leaves home without them. 5 MR. RICHARDSON: I appreciate the indulgence. Thank 6 you. If you can make sure the right one gets on the right 7 one. 8 THE COURT: Those three exhibits are admitted. 9 (Plaintiff's Exhibits 7-9 received in evidence.) 10 MR. RICHARDSON: Thank you, Your Honor. 11 BY MR. RICHARDSON: 12 MR. RICHARDSON: If I neglected to offer Exhibit 6, 13 I would offer that as well. 14 THE COURT: It's in already. I'd like to see it. 15 MR. RICHARDSON: If I may ask the Court's guidance, 16 we also have present in the courtroom the physical compendium 17 of the Internet publications by the defendant as of the time 18 the lawsuit began. And I'm reluctant to burden the Court with 19 too much paper, but I could easily put Mr. Rompala -- 20 THE COURT: You better place them before the Court. 21 MR. RICHARDSON: Okay, thank you. Your Honor. I 22 think Mr. Rompala -- 23 THE COURT: We've heard this before. So can I see 24 these exhibits? 25 MR. RICHARDSON: Yes. Let me give you -- Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 32 of 75 LUCAS - DIRECT / RICHARDSON 32 1 THE COURT: Well, I don't quite understand this 2 because you've described Exhibit 8 as the current sites as of 3 today, July 1st, 2009. But your first block of information 4 under blogspot.com has a listing under "remove postings." 5 THE WITNESS: That's what we want removed. 6 THE COURT: Oh, so this is not just a compilation of 7 these materials, but the action that you want the Court to 8 take? 9 THE WITNESS: Yes. That's what I personally wrote. 10 I'm not a lawyer. So that's what we considered to be related 11 to the litigation, so -- 12 THE COURT: So you've got to identify your documents 13 here, Counsel. 14 MR. RICHARDSON: I apologize, Your Honor. 15 THE COURT: Because this doesn't -- get her to 16 describe what's in this document. Do you have another copy of 17 this? 18 MR. RICHARDSON: I do not. 19 THE COURT: This is the only copy you brought to 20 court? 21 MR. RICHARDSON: Yes, I apologize. 22 THE COURT: Did your Xerox break or something? 23 MR. RICHARDSON: No, partial brain break I'm afraid, 24 Your Honor. 25 THE COURT: Let's do this. Would you turn on the Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 33 of 75 LUCAS - DIRECT / RICHARDSON 33 1 overhead projector, please. Then we can look at it at the 2 same time and she can tell me what is in each document. 3 Can you see that all right? 4 THE WITNESS: Yes. 5 THE COURT: You're directing her attention to page 6 one of Exhibit 8? 7 MR. RICHARDSON: Yes, thank you, Your Honor. 8 Q Miss Lucas, could you please identify what the entries on 9 Exhibit 8 are intended to show or identify? 10 A They identify the website that we are referring to. If 11 there are several postings on the same general website, for 12 instance, there are several postings on blogspot.com, the very 13 first page, the first page -- 14 Q I'm sorry. 15 A That is at the top of all of the boxes, and then the 16 individual boxes are individual websites associated. 17 Q This is a listing of websites that you found that are in 18 existence as of today that contain, you know, within the 19 direction you were provided, materials that you think would be 20 regarded as defamatory; is that correct? 21 A Yes. 22 Q Okay, thank you. 23 THE COURT: Now, wait, the first one you have up 24 there is a separate website, right, the 25 BarryEppleyPlasticSurgeon -- Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 34 of 75 LUCAS - DIRECT / RICHARDSON 34 1 MR. RICHARDSON: Dot com. 2 THE WITNESS: Barry Eppley. 3 THE COURT: It says "Plastic U Surgeon? 4 MR. RICHARDSON: I'm sorry, there was a typo in 5 there. 6 THE WITNESS: It's Barry Eppley Plastic surgeon.com. 7 The top entry is a typo. 8 THE COURT: So it shouldn't have "U" in it? 9 THE WITNESS: Correct. 10 THE COURT: Okay. So mark that out, Mr. Richardson. 11 MR. RICHARDSON: Yes, Your Honor. 12 THE COURT: That's the name of the website? 13 THE WITNESS: Yes. 14 THE COURT: Then where it says "remove all," that's 15 your plaintiff's request of the Court; is that right? 16 THE WITNESS: I looked at the websites with Joe 17 Rompala, and we determined what we would like -- what he 18 determined was defamatory. 19 MR. RICHARDSON: Yes, and, Your Honor, her 20 directions were to identify sites that had materials that 21 were -- described the surgery and the litigation. 22 THE COURT: So what "remove all" actually means in 23 terms of this witness and her work and her expertise is all 24 the information in that website appears to be defamatory? 25 MR. RICHARDSON: Yes. It appears to be actually in Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 35 of 75 LUCAS - DIRECT / RICHARDSON 35 1 violation -- that one is in violation of the Court's order. 2 THE COURT: All right. And then you have website 3 purported author Frank de Groot. How do you know that? 4 THE WITNESS: It says it at the bottom. I don't 5 know if it's true. It says it at the bottom of their webiste. 6 THE COURT: So when it says that, it's something 7 you've pulled off the website; is that right? 8 THE WITNESS: Correct. 9 THE COURT: So now moving on to the next one, 10 blogspot.com, that's a separate site? 11 THE WITNESS: Correct. 12 THE COURT: And what does that first information in 13 the top of part of the box, "cosmetic surgery, ugly side, 14 blogspot.com," what does that mean? 15 THE WITNESS: That is a website that contains 16 information about Dr. Eppley. 17 THE COURT: So that's a subdirector in blogspot.com; 18 is that right? 19 THE WITNESS: Correct. 20 THE COURT: Okay. And when you reviewed it, 21 everything on that site -- videos, pictures, links and 22 postings mentioning Dr. Eppley -- in your judgment, they all 23 violated the Court's order; is that right? 24 THE WITNESS: Every -- that is a general directive. 25 Every posting under "remove postings" are specific postings Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 36 of 75 LUCAS - DIRECT / RICHARDSON 36 1 that were still on that website as of about 10 o'clock this 2 morning, and many of the websites -- 3 THE COURT: I'm trying to figure out what I should 4 review as evidence and what I should review as your 5 adversarial request or position. 6 MR. RICHARDSON: I guess I have to apologize to the 7 Court. This was not meant to be introduced as a request to 8 the Court for specified relief. I had Ms. Lucas available 9 with her materials to provide the Court as much of a record as 10 the Court desired on the scope of the Internet filings. And I 11 apologize that we got a little premature in submitting the 12 list that she prepared in carrying out that assignment. 13 THE COURT: Well, they are in evidence so I have to 14 understand what's in evidence. 15 MR. RICHARDSON: Thank you, Your Honor. 16 THE COURT: And what they reflect, because if the 17 Court's going to order any remediations or impose any 18 sanctions, it has to be on the basis of the factual record. 19 MR. RICHARDSON: Yes. 20 THE COURT: And I'll hear your adversarial pitch 21 later. 22 MR. RICHARDSON: Understood, Your Honor. 23 THE COURT: So wherever it says "remove" or 24 whatever, that's basically beyond the scope of this witness's 25 ability to argue; isn't it? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 37 of 75 LUCAS - DIRECT / RICHARDSON 37 1 MR. RICHARDSON: That is correct. 2 THE COURT: So the Court probably ought to disregard 3 that as such, but can interpret that terminology to mean that 4 upon her review, everything in that site refers to Dr. Eppley 5 in the defamatory, pejorative way that is at issue in this 6 lawsuit. 7 MR. RICHARDSON: That is correct. 8 THE COURT: So we can take it as that fact rather 9 than that argument. 10 MR. RICHARDSON: Correct. 11 THE COURT: Okay. 12 MR. RICHARDSON: Correct, and Exhibit 6 would stand 13 as the collection of Internet postings through the date of 14 today's hearing. 15 THE COURT: Well, I'm just pulling out one of the 16 first ones that refers to Dr. Eppley because they're gathered 17 in paperclip fashion. And I'm looking for the part that has 18 to do with Dr. Eppley because it's not readily apparent. 19 THE WITNESS: If I may, I can hand you documents. 20 THE COURT: Hang on just a minute. 21 Okay. Well, let me just give this first clump back 22 to you. I can't tell where it comes from. Blogspot.com, 23 dated 6/19/2009. So it must be the first one, what I have a 24 right to publish. 25 THE WITNESS: Yes. As I said, I have visited the Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 38 of 75 LUCAS - DIRECT / RICHARDSON 38 1 websites several times, and she continues to -- the websites 2 continue to change, so I may have multiple copies of the 3 website as I attempted to keep up with those changes. 4 THE COURT: Show me the -- have the witness show me 5 the part that pertains to Dr. Eppley. 6 MR. RICHARDSON: Yes, Your Honor. 7 THE WITNESS: Then and now, which -- 8 THE COURT: Is that several pages down in? 9 THE WITNESS: Yes. 10 THE COURT: Let's put a yellow sticky on that. 11 Here you go, counsel. 12 If there's anything else in there, designate it in 13 that same way, please. 14 THE WITNESS: There are no others but if I may 15 clarify? You commented on 6/19. That is the date that I 16 printed off. You were looking, I believe, in the bottom 17 corner, 6/19? 18 THE COURT: Right. I was just trying to see if it 19 correlates with what's in Exhibit 8. 20 THE WITNESS: So this is -- that is the date of when 21 I printed it off. Some of them have been -- some of the 22 postings have been removed, as I said, that we documented. 23 For instance, this one was a fairly recent posting. So 24 some -- so it's to show how the website has changed. Some 25 postings have been removed, and I do have a listing of what Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 39 of 75 LUCAS - DIRECT / RICHARDSON 39 1 has been removed from each site as best we can determine, but 2 this one does mention -- where I put a sticky note, does 3 mention Dr. Eppley, this posting. 4 THE COURT: Well, I understood that Exhibit 8 was a 5 compilation as of today of the mentions of Dr. Eppley on 6 websites that you believe are originated and otherwise 7 attributable to the defendant. 8 THE WITNESS: I apologize. Which is Exhibit 8? 9 THE COURT: What's on the screen. 10 THE WITNESS: Correct. 11 THE COURT: So why are you telling me about removals 12 in conjunction with Exhibit 8? 13 THE WITNESS: There are two sites under 14 blogspot.com, and what you handed me was the second site under 15 blog -- Lucille Iacovelli, blogspot.com, and it mentions then 16 and now, which is what I have flagged for you. 17 THE COURT: Down in the third box? 18 THE WITNESS: Yes. 19 THE COURT: Although the date is September 2, 2008. 20 THE WITNESS: Correct, this is a listing of what is 21 currently on the Internet right now as of this morning. But I 22 do have a list of whatever is new. 23 THE COURT: Counsel, I'm confused by these exhibits, 24 so you better clarify them. 25 MR. RICHARDSON: May I suggest, Your Honor, I Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 40 of 75 LUCAS - DIRECT / RICHARDSON 40 1 thought we were a little farther along in being able to 2 explain them than we were, and I apologize for trying to do it 3 quickly. 4 Would it be preferable if we were to submit a 5 compendium in affidavit form tomorrow that highlights the 6 particular mentions of Dr. Eppley's name and is better suited 7 to directing the Court's attention to the particular spots? 8 THE COURT: I think I need more lawyer input. And 9 so that sounds like a preferable way to do it, because you 10 need to take the work of Ms. Lucas and bring it into the 11 format and the substance of this lawsuit; what is it you want 12 me to see as evidence of contemptuous behavior so that a 13 remedy, if the Court so finds, can be imposed. And I can't 14 quite tell from the data you've placed before me. 15 MR. RICHARDSON: Understood, Your Honor. I 16 apologize for a lack of readiness in that regard. 17 THE COURT: So let me get that exhibit back, and 18 I'll keep these exhibits, unless you want to withdraw them. 19 MR. RICHARDSON: If we could withdraw them for the 20 purpose of making one photo copy, that would be terrific. 21 THE COURT: Of everything? 22 MR. RICHARDSON: Yes. 23 THE COURT: Okay. Give that back to me, though, 24 just as I gave it to you. 25 MR. RICHARDSON: Was this part of that, or were Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 41 of 75 LUCAS - DIRECT / RICHARDSON 41 1 these two together? Do you know? 2 THE WITNESS: I assume that they came at the same 3 moment. I don't -- 4 THE COURT: They were clumped together, so get the 5 clip. 6 MR. RICHARDSON: And we will also include with that 7 submission the collection of Internet materials as of the date 8 the lawsuit started as well. 9 So there -- 10 THE COURT: Whatever you do, just make it plain. 11 MR. RICHARDSON: I will do my best to make it clear. 12 THE COURT: Give me back that exhibit as well that 13 you've got on the monitor. Are you done with this witness? 14 MR. RICHARDSON: Yes, Your Honor. 15 THE COURT: You may step down, Ms. Lucas. Thank you 16 very much. 17 MR. RICHARDSON: We do have one more witness. 18 THE COURT: All right. You may call him. 19 MR. RICHARDSON: Mr. John Hicks. 20 THE COURT: Good afternoon, Mr. Hicks. 21 THE WITNESS: Good afternoon. 22 JOHN HICKS, PLAINTIFF'S WITNESS, SWORN 23 24 25 Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 42 of 75 HICKS - DIRECT / RICHARDSON 42 1 DIRECT EXAMINATION 2 THE COURT: You may be seated. 3 THE COURT: Did we get you out of family chores? 4 THE WITNESS: I apologize to the Court. I was 5 instructed to dress in business casual. 6 THE COURT: No disrespect to the Court at all. 7 Thank you, Mr. Hicks. 8 MR. RICHARDSON: And I take responsibility. 9 THE COURT: It's always the lawyer's responsibility, 10 I mean that. You have to make it plain. 11 MR. RICHARDSON: You're right. 12 BY MR. RICHARDSON: 13 Q Mr. Hicks, would you please give your name and business 14 address for the record. 15 A John M. Hicks, and I work at Indiana University. I have 16 an office at 35 -- excuse me, 535 West Michigan Street, 17 Indianapolis, Indiana, 46202. 18 Q And what is your current employment? 19 A I'm a network engineer with the University Information 20 Technology Services. 21 Q And what are your responsibilities in that regard? 22 A Through Indiana University, we run a high performance 23 network that is NSF, National Science Foundation, funded that 24 goes from -- the landing points are in Los Angeles, 25 California, to Tokyo, Japan. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 43 of 75 HICKS - DIRECT / RICHARDSON 43 1 We -- I run all aspects, including design and daily 2 operations, as well as measurement and security. I also work 3 in concert with the RENISAC, which is the Research and 4 Education Network Information Sharing -- I can't remember -- 5 Information Sharing Analysis Center. And that is the ISAC 6 part of the -- it's a trickle down from the Homeland Security. 7 There are a number of ISACs. For example, the 8 transportation ISAC, or imports and exports ISAC, and it's a 9 way -- it's a clearinghouse of security information related to 10 a particular domain or a particular topic. 11 We, at Indiana University, run the Research and 12 Education ISAC, and we collect information from the commercial 13 Internet, as well as the research and education Internet, and 14 provide information to the public on what kinds of activities 15 are going on and who is doing it. 16 Q And those subjects you described are within the scope of 17 your job responsibilities, is that correct? 18 A Correct, yes. 19 THE COURT: What's your educational background? 20 THE WITNESS: I have an undergraduate degree in 21 mathematics, and I have a AAB, all but the dissertation, for 22 computer science. 23 THE COURT: Thank you. 24 BY MR. RICHARDSON: 25 Q Could you please briefly describe your employment history Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 44 of 75 HICKS - DIRECT / RICHARDSON 44 1 after, starting with the college graduation? 2 A So I have worked at Indiana University since my 3 graduation, and originally was with a group that did virtual 4 reality and graphics programming. And my particular expertise 5 was to do Internet-related immersive environment, so the idea 6 was that you would have two visualization facilities 7 geographically disbursed, and my responsibility was to connect 8 these environments over the Internet and provide a single 9 immersive experience for all the audience. 10 Q And that was also part of your employment with IU? 11 A Correct. 12 Q Do you have any military experience? 13 A Yes. I was in the United States Air Force from 1985 until 14 1990. And I served my -- I went to a number of training 15 schools and was in Oklahoma for a while. My final and longest 16 duration was in REF Mendenhall. I was at Third Air Force 17 Headquarters, and I was the electronic combat officer or 18 manager for the United Kingdom during that time. 19 Q And how many years did you say you've been at IU? 20 A I've been -- it will be 15 years this July -- well, 15 21 years. 22 Q And all in connection with computer networking? 23 A Prior to -- for the first four years, I believe, I was at 24 the math department at -- here at IUPUI as a system analysis 25 programmer, that kind of thing. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 45 of 75 HICKS - DIRECT / RICHARDSON 45 1 Q And? 2 A And networking, I did all their networks as well. 3 Q Okay. 4 THE COURT: Where did you grow up? 5 THE WITNESS: In Bloomington. 6 BY MR. RICHARDSON: 7 Q And you're familiar with the structure of the Internet -- 8 A I am. 9 Q -- from a technical perspective? 10 And are you familiar with the way domain names are 11 registered? 12 A Yes, I am. 13 Q Are you generally familiar with the way interactive 14 Internet services operate? 15 A Yes, I am. 16 Q Let's take YouTube as an example. Would you describe that 17 as an interactive Internet site? 18 A Yes. 19 Q Please explain in what respect. 20 A So YouTube is a provider. They provide a service that 21 is -- it's a hosting site where anybody in the public can get 22 an account with a password and then upload from their own 23 computer videos and other material. 24 Then once that is uploaded, it's approved by the -- 25 whatever site it is, YouTube, for content, look at the content Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 46 of 75 HICKS - DIRECT / RICHARDSON 46 1 to see if it's pornographic or see if it violates any of their 2 policies. And then the public using the Internet can go to 3 that particular website and view the material. 4 Q And we used YouTube as an example. There are a variety of 5 websites that offer similar -- 6 A Yes. 7 Q Blog sites? 8 A Right. A similar mechanism is involved in other YouTube 9 sites that particularly does videos, but there are sites that 10 will do just images or blogs or, you know, will let you also 11 carry on a conversation with somebody else in that, who has an 12 account in that service -- through that service. 13 Q And to your knowledge, are those services generally 14 offered pursuant to stated terms of service? 15 A Correct. So if you have an account, the account is -- if 16 you're -- if there's a monetary exchange, there is a period of 17 service. Some of the other sites, like YouTube for example, I 18 don't think there is an expiration date because it's offered 19 to the public if you have -- if you meet their criteria to get 20 a user name and a password. 21 THE COURT: So what would the fee be, for example, 22 for a YouTube account? 23 THE WITNESS: Well, I don't think YouTube charges 24 for particular content. 25 THE COURT: I thought you said you pay a fee for Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 47 of 75 HICKS - DIRECT / RICHARDSON 47 1 opening an account? 2 THE WITNESS: If another service -- for example, 3 there are -- there is a service through Kodak that you can -- 4 you pay money for an account, and then you're able to use 5 their services to upload pictures and things like that. And 6 there's usually more control over the content. 7 MR. RICHARDSON: And they are -- 8 THE COURT: Wait just a minute. So if you're 9 opening an account for YouTube, you don't necessarily have to 10 pay; is that right? 11 THE WITNESS: That's correct. 12 THE COURT: Okay, go ahead. 13 BY MR. RICHARDSON: 14 Q And there are, for example, blog sites that might charge a 15 fee for opening an account; is that right? 16 A Correct. 17 Q And with respect to those sites, I think you said they 18 generally do have terms of service specified when the account 19 is open; is that right? 20 A Correct, terms of service, as well as what they consider 21 proper content. 22 THE COURT: Is it a regular fee or is it a one-time 23 fee? Can you tell me what an approximate fee amount is? 24 THE WITNESS: Typically, for -- so we're talking 25 about sites that will host different kinds of content, and Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 48 of 75 HICKS - DIRECT / RICHARDSON 48 1 usually you'll have a term. You can have a term of service in 2 a year or two years, and so you might pay, you know, a monthly 3 fee of $10 or something like that. And then -- 4 THE COURT: Fairly nominal? 5 THE WITNESS: Fairly nominal. And for the nominal 6 fee, they'll provide a basic service. And then, how they want 7 to make their money is, you get a free or inexpensive account, 8 and then they offer you more and more services, more disk 9 space, or more other services that they provide, and then 10 you'll pay for those as well. 11 THE COURT: Go ahead. 12 BY MR. RICHARDSON: 13 Q And pursuant to those terms of service, did the operator 14 of those sites retain the ability to deny access or terminate 15 accounts of users who violate their terms? 16 A Yes. 17 Q Let's talk for a moment about the domain registration 18 process. And if we may use godaddy.com as an example. Could 19 you explain, please, how a citizen could go to godaddy, and 20 attempt to register a domain name? 21 A So as an individual, I can go to godaddy, for example, and 22 if I want to register a particular domain, it's just a series 23 of characters. And so I submit that to them, and they do a 24 search to see if it is unique and they own that information. 25 So that's their responsibility as, you know, if I Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 49 of 75 HICKS - DIRECT / RICHARDSON 49 1 want to register, for example, johnhicks.com, I request that 2 domain. They will search for it and make sure that it is 3 unique and then provide -- then I will enter into a contract 4 with them for a particular period of time for a nominal fee. 5 For example, I have a number of domains myself and 6 they cost on the order of, you know, $10 a year or so. And I 7 usually -- the typical terms of service are three to five 8 years. 9 Q Okay. And so there is a contractual arrangement between 10 the person seeking to register the domain name and the service 11 provider, such as godaddy? 12 A Correct. 13 Q To your knowledge, does godaddy have terms of service in 14 connection with those transactions? 15 A Yes. 16 Q And does godaddy and other domain registrations, service 17 providers, do those entities retain the capability of denying 18 access or terminating a customer's account if the terms of 19 service are violated? 20 A Technically, yes. They can terminate and/or reoffer 21 that -- reclaim that domain and offer it again for -- to the 22 public if that's -- if it's available. 23 Q Okay. Thank you. 24 THE COURT: Can you tell who has authorized a 25 particular domain registration? Are there more companies than Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 50 of 75 HICKS - DIRECT / RICHARDSON 50 1 godaddy, for example? 2 THE WITNESS: Yes, there are a number of -- godaddy 3 is sort of maybe the largest. 4 THE COURT: Is it like Google? Is it comparable to 5 Google? 6 THE WITNESS: In what sense? 7 THE COURT: Well, in the sense that it's the 8 recognizable search engine? 9 THE WITNESS: Right. In the U.S., it is a 10 recognizable search -- or, I'm sorry, domain name service 11 provider. Again, there are a number of them, but they all -- 12 when you search for a unique name, all of those have to be 13 searched. 14 THE COURT: So if you were doing business -- let me 15 just ask about yours for example. When you registered your 16 name, johnhicks.com, and you wanted to register it with 17 godaddy, then would godaddy check with everybody else? Would 18 they do their sort of industry search? 19 THE WITNESS: Correct, yes. 20 THE COURT: And they would come back and say that's 21 okay, you can use that one, it's not otherwise in use? 22 THE WITNESS: Correct. 23 THE COURT: So as far as you're concerned, it 24 doesn't matter how many other places you could have done that 25 sort of domain registration because godaddy's process Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 51 of 75 HICKS - DIRECT / RICHARDSON 51 1 incorporates all of them? 2 THE WITNESS: Correct, yes. 3 THE COURT: Go ahead, Counsel. 4 BY MR. RICHARDSON: 5 Q Just to clarify, could you explain what the Whois search 6 is? 7 A "Whois" is a database that is a mechanism for the Internet 8 to map a domain name to an IP address. So if I can explain 9 that, every computer on the Internet, every device that is on 10 the Internet, will have a particular number. It's called an 11 IP number, an internet protocol number. And there are 12 different forms of that. But that is the mechanism to 13 communicate one computer to the other. It has to have a 14 number and that number has to be unique in order for it to 15 work. 16 The domain name is something -- sort of another 17 layer on top of that that maps the name that is more 18 recognizable to humans to a number, to the actual number that 19 the computer uses. So the computer itself doesn't have a 20 mechanism to put in the -- it doesn't really have a mechanism 21 to put in the domain name. It only has the number, and 22 there's another mapping through Whois that maps that name to 23 the number. 24 Q So what information can you obtain through a "Whois" 25 search? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 52 of 75 HICKS - DIRECT / RICHARDSON 52 1 A "Whois" will provide who registered the domain, who it was 2 registered through, and then there are other fields that are 3 optional that will provide maybe geographic location, latitude 4 and longitude, other institutions that you're related to or 5 other -- and the contact information if there's any question 6 about the domain. 7 Q And I think you said that "Whois" is a publicly-accessible 8 database? 9 A Correct. 10 Q It provides information about registrants and registrars 11 for websites? 12 A Yes. 13 Q So that would be -- for example, you could do a "Whois" 14 search on eppleyplasticsurgerysucks.com, and it would tell you 15 the name of the person who registered it and whether it was 16 godaddy or some other company? 17 A Right. 18 Q That was the registrant? 19 A Yes. 20 Q Okay. Thank you. 21 Let's talk about search engines finally. We 22 mentioned Google earlier. Can we agree Google is the market 23 leader of search engines? What others are out there? 24 A What other? 25 Q What other major search engines? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 53 of 75 HICKS - DIRECT / RICHARDSON 53 1 A Microsoft has -- there's a new Microsoft product called a 2 decision engine. 3 Q Is that two different things, is that Microsoft's product? 4 A I think that's Microsoft. I'm not sure exactly what it's 5 called. I have just recently seen it. It's a marketing way 6 to get people to use their search engine as opposed to Google 7 or some of the other ones. Yahoo is another one. 8 Q But Google is the predominant; is that fair to say? 9 A I would say so. I can't testify about their, you know, 10 size. 11 Q Do you have any understanding as to Google's policy 12 position with respect to removing particular sites from their 13 search engine parameters? 14 A Well, technically, they have the capability of doing that. 15 I understand that they are not in a -- they are not as eager 16 to do that on a general basis, but there were some things that 17 we found that said that they would adhere to a court order to 18 restrict access to particular searches. 19 Q So let's just, as a hypothetical example, suppose that 20 there is a website that is registered in Russia and hosted on 21 a Russian server and is, for whatever reason, beyond the 22 capability of being addressed through the webmaster or through 23 the domain registration system. Would effort by Google to 24 block that site from its search parameters be effective in 25 preventing users in the United States doing a search that Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 54 of 75 HICKS - DIRECT / RICHARDSON 54 1 includes terms within that site from being directed to that 2 site? 3 A Yes, but I just want to add that does not remove the 4 content from the web, but it does hinder the general public to 5 find out about where that site is. 6 Q Okay. So in those instances where the operator of the 7 site is unwilling to cooperate and where the domain registrant 8 cannot be addressed directly either, blocking through the 9 search engines is technically possible and feasible; is that 10 correct? 11 A Yes, correct. 12 Q Thank you. 13 MR. RICHARDSON: That's all the questions I have for 14 Mr. Hicks. 15 THE COURT: Hold on just a second, sir. 16 THE WITNESS: Yes. 17 THE COURT: Just one second. 18 Have you ever done that sort of, or participated, or 19 advised with respect to that process of blocking through the 20 search engines? 21 THE WITNESS: You mean pursued somebody like Google 22 to -- 23 THE COURT: Right. 24 THE WITNESS: No. 25 THE COURT: How do you know it's feasible? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 55 of 75 HICKS - DIRECT / RICHARDSON 55 1 THE WITNESS: Because I know that it's technically 2 feasible. The algorithm for the search engines are intended 3 to represent an organic thing like the -- that is the 4 Internet. So that popular site that people are visiting, 5 doing the content populates off of that, will be higher up in 6 the search engine. But the actual algorithm used is 7 proprietary. They don't want people to know what they are 8 doing. So they are -- there are, you know, some listed 200 9 criteria that they use, too. 10 THE COURT: They, meaning Google? 11 THE WITNESS: They, meaning Google, and the search 12 engine optimization folks. And so they try very hard to 13 combat this, the ability to do things that were mentioned 14 before, where you try to -- you pay a company to boost your 15 particular site in a search engine. 16 And a lot of that is just guessing and knowing that 17 it has to be -- you know, this has to be a criteria, and where 18 that falls in the algorithm, it's unknown. 19 But as far as the search engine itself, to be able 20 to look at a particular site and be able to either flag that 21 or map that to something that is known, or -- just the 22 algorithm itself and the mechanism, as far as the computer 23 being able to go through the algorithm when it has that 24 request, that's just my opinion, technically they would be 25 able to do that. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 56 of 75 HICKS - DIRECT / RICHARDSON 56 1 THE COURT: Let me ask a question that is geared to 2 the specifics of this case. 3 Since it's so easy to, or seems relatively easy to 4 me, to create a site and to establish a domain name, and 5 therefore to secure the necessary access to broadcast or 6 publish information on the Internet, if the process for 7 blocking the misuse or the abuse by certain patrons is geared 8 to the domain names that they are currently using, there's a 9 very simple way around that. They just tweak the domain name. 10 So it's basically getting at the same thing. For 11 example, it's my understanding that one of the domain names 12 here in this case is drbarryeppleysucks.com or something like 13 that; is that right? 14 MR. RICHARDSON: Yes. 15 THE COURT: So if somehow the Court were to fashion 16 an order that was understandable and enforceable and 17 acceptable to Google in a technological way to stop that site, 18 they could start using Dr. Eppley's middle initial -- what is 19 it? What's your middle -- 20 MR. RICHARDSON: I want to say L. Eppley. 21 THE COURT: They could change it to 22 barryleppleysucks.com and do whatever they want to do under 23 that domain name. So it's sort of like trying to catch a 24 bubble here? 25 THE WITNESS: Correct. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 57 of 75 HICKS - DIRECT / RICHARDSON 57 1 THE COURT: And so is my understanding correct -- 2 first, is my impression accurate that any order that's 3 fashioned that simply addresses the existing domain names is 4 not likely to be effective for long? 5 THE WITNESS: Correct. If you specifically 6 addressed a particular IP number or a particular domain, then 7 they have the option to change that. 8 But as you pointed out, by doing that, you're sort 9 of playing Wackamo. As soon as they come up, then you tag 10 them. But there are general ways to address search engine 11 algorithms that would not be a hundred percent but that would 12 broaden the scope in that. 13 THE COURT: Explain that to me. 14 THE WITNESS: For example, if you said any, you 15 know, permutation of Barry and Eppley or in association with 16 plastic surgery, you could have all of those queries point to 17 maybe Dr. Eppley's site or another -- in other words, not go 18 to the intended dr.eppleysucks or whatever the other offending 19 sites are. 20 So there is a way to manipulate that technically. I 21 don't know specifically what Google's policy is on that. 22 THE COURT: Right. The other reason that some sort 23 of restraint or an order in that direction might not work in 24 this case is because Dr. Eppley himself uses the Internet to 25 extend and expand legitimately his business interests. So we Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 58 of 75 HICKS - DIRECT / RICHARDSON 58 1 can't fashion an order, the Court can't fashion an order that 2 uses his name if, in doing so, we catch not only the 3 legitimate uses in that net, but the pejorative uses; isn't 4 that true? 5 THE WITNESS: Correct, but except that I could also, 6 and I'm not -- again, this is technically -- I know this is 7 possible. As far as policy, I don't know where it falls. But 8 you could, for example, every mention of Barry Eppley would 9 point incorrectly, you know, would not point to the offending 10 sites, but they would also all point to something that is 11 certified as his site with his information. 12 THE COURT: Okay. Any further questions? 13 MR. RICHARDSON: No, Your Honor. 14 THE COURT: Okay. Thank you, sir. You may step 15 down. 16 Is that your last witness, sir? 17 MR. RICHARDSON: Yes, that completes our evidentiary 18 presentation, Your Honor. 19 THE COURT: Okay. I'll hear you on your motions, 20 including the discovery motions. 21 MR. RICHARDSON: Thank you, Your Honor. The grounds 22 for the -- 23 THE COURT: Let me ask you, have you filed a motion 24 to compel on the discovery? 25 MR. RICHARDSON: Yes, we filed a motion to compel, Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 59 of 75 HICKS - DIRECT / RICHARDSON 59 1 yes. 2 THE COURT: Go ahead. 3 MR. RICHARDSON: No, I apologize, Your Honor. We 4 filed a motion for sanctions. We did not file a motion to 5 compel. 6 THE COURT: That was what I remembered, but I might 7 have misread it. 8 MR. RICHARDSON: You're correct. You caught me. 9 Yes, that's right. 10 On the motion for contempt sanctions, substantial 11 grounds have been laid before the Court unopposed. The 12 offenses are admitted and admittedly willful on the part of 13 the defendant and her associates. 14 And we, in terms of remedies, would look to the 15 Court for three things. And I would note that we have asked 16 for an entry of default judgment as a part of the request for 17 contempt sanctions, in part because the defendant did not 18 appear at the preliminary injunction hearing despite being 19 ordered to do so, and again, that is the case today. 20 THE COURT: They have answered the allegations in 21 the complaint? 22 MR. RICHARDSON: Yes, there was an answer that was 23 filed, but two hearings now, she was ordered to appear and -- 24 THE COURT: That's usually not a basis for a default 25 judgment. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 60 of 75 HICKS - DIRECT / RICHARDSON 60 1 MR. RICHARDSON: No, and it's taken in the context 2 of the litigation as a whole, which also includes a refusal to 3 participate in discovery, and the engagement of extensive 4 violations of the Court's preliminary injunction and temporary 5 restraining order. 6 So we are asking the Court to enter final judgment, 7 whether in the context of a final judgment or as entry of 8 sanctions for contempt of court. 9 THE COURT: Well, it's most likely -- I mean, it 10 most often happens, whether it happens as a sanction for 11 failure to participate in discovery, that's the evidence. 12 It's not because they didn't come to these two injunctive 13 relief hearings. 14 MR. RICHARDSON: No, although there is -- and I 15 believe we cited a 7th Circuit decision that described a 16 litigant who participated somewhat in the proceedings, but 17 sort of picked and chose what he was going to participate in 18 or not. And, as in that case, as you point out, there was 19 discovery refusal, in addition to the Court did note failure 20 to appear for -- I believe it was a pretrial conference in 21 that case. In that instance, the Court did affirm the grant 22 of default judgment. 23 But whether in grant of a default judgment and the 24 entry of final judgment or as a sanction for the contempt 25 that's been shown here, we are asking for an order that will Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 61 of 75 HICKS - DIRECT / RICHARDSON 61 1 be effective in removing the violative publications from the 2 Internet without the cooperation of the defendant or her 3 associates. And specifically, as Dr. Eppley described in his 4 testimony, an order that would be sufficiently detailed and 5 forthright, so that we could go to a Google and godaddy and 6 YouTube, and they would read it and understand that they need 7 to assist in removing the -- 8 THE COURT: That's in the order. 9 MR. RICHARDSON: Yes, so that's -- that's one 10 category of relief. 11 We've also asked the Court for personal sanctions 12 against the defendant. The Court has very wide discretion in 13 terms of how to respond to the contempt of the Court, as you 14 pointed out earlier. There are postings of the type that 15 brought us to the litigation in the first place, falsely 16 accusing Dr. Eppley of malpractice and falsely accusing 17 Dr. Eppley of causing suffering to Ms. Iacovelli. 18 Those publications remain on the Internet, and to 19 some extent, have been added to during the course of the 20 litigation in violation of the temporary restraining order and 21 the preliminary injunction. 22 THE COURT: What do you think of this idea, Counsel? 23 Maybe we should have asked this of Mr. Hicks, but let me ask 24 you this. And I don't know if it's technologically feasible, 25 with my limited knowledge but more substantial experience with Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 62 of 75 HICKS - DIRECT / RICHARDSON 62 1 the Internet, causes me to know when you access a site, you 2 get the drop-down ads. 3 MR. RICHARDSON: Popups? 4 THE COURT: Yes, popups, and I'm wondering if it's 5 possible to superimpose on these sites such an ad, and either 6 put the injunction out there in the ad or some other statement 7 that is directed towards neutralizing the adverse contempt 8 test. Have you thought about that? 9 MR. RICHARDSON: Yes, and the answer is, I believe 10 that would be feasible with respect to the sites that are 11 hosted by domestic website servers or are registered in the 12 United States. 13 Where I don't think that would be feasible is with 14 respect to what I'll call the Frank de Groot sites that are 15 registered in Russia and hosted on Russian servers. 16 THE COURT: But your questions of Mr. Hicks 17 indicated that even with respect to those when they come into 18 the United States, they come into Google directly basically. 19 MR. RICHARDSON: Well, they get searched and indexed 20 by Google, and then when someone asks Google for a search 21 inquiry, they get -- it gets ranked and it gets listed in 22 those rankings. 23 So I don't know if Google has the technical 24 capability to put an item into that process. It just reports 25 what it finds out there. And what Google does have the Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 63 of 75 HICKS - DIRECT / RICHARDSON 63 1 capability of doing, I believe, is dropping it out of their 2 searches so that when someone searches for Barry Eppley, it 3 doesn't call up that particular site. 4 THE COURT: I understand. Go ahead. I cut you off. 5 MR. RICHARDSON: Not at all. We are asking -- 6 THE COURT: The things you're asking for? 7 MR. RICHARDSON: Yes, yes, for, number one, an order 8 that we could go to Google and godaddy with and attempt to get 9 their cooperation so that we don't have to depend on the 10 defendant. 11 THE COURT: Also Microsoft and Yahoo? 12 MR. RICHARDSON: Yes, MSN and Yahoo. 13 And secondly, we have asked for imposition of 14 monetary fines against the defendant. That, of course, rests 15 in the discretion of the Court. 16 THE COURT: Have you done any research or 17 investigation to determine whether a fine, a monetary fine can 18 be paid? 19 MR. RICHARDSON: It's -- 20 THE COURT: I mean, one of the reasons it's been 21 cited to the Court for not coming is that Ms. Iacovelli 22 doesn't have any money and she can't afford to hire a lawyer 23 or to defend. 24 MR. RICHARDSON: Yes, I'm aware of a variety of a 25 assertions that have been made by her at different points. I Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 64 of 75 HICKS - DIRECT / RICHARDSON 64 1 don't know what the full extent of her resources might be. I 2 can represent to the Court that I got an e-mail from her last 3 week that indicated that she was hoping to fly to the country 4 of India for more surgery. So I don't know where she's 5 getting the money for that potential trip. 6 As Your Honor pointed out in the entry yesterday, 7 she did have private counsel engaged in a proceeding in 8 Massachusetts to my understanding. He was being paid by the 9 hour. I don't know the circumstances of -- 10 THE COURT: I'm not asking, but I expect your client 11 could inform you as to the manner in which she paid for the 12 surgery that he performed. 13 MR. RICHARDSON: I think she put a stop payment on 14 the check, Your Honor. 15 THE COURT: You mean all this and no payment either? 16 MR. RICHARDSON: I believe that is correct. 17 DR. EPPLEY: That is correct. 18 THE COURT: There is, I would say, certainly a 19 strong probability that she would not be in a position to pay 20 any substantial monetary fines. It would be my hope that a 21 monetary liability would prove to be an incentive on her not 22 to engage in violations in the future. 23 Have you made an investigation of her residential 24 circumstances? Do you know where she lives? 25 MR. RICHARDSON: Yes, it's my understanding she Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 65 of 75 HICKS - DIRECT / RICHARDSON 65 1 lives in either a guest house or a converted garage. I don't 2 know the circumstances of her host or landlord, what her 3 relationship is with them. 4 THE COURT: Is the gentleman who often speaks for 5 her, whose name I've forgotten... 6 MR. RICHARDSON: Mr. Bergeron. 7 THE COURT: Yes, is that his property? 8 MR. RICHARDSON: No. As far as I know, they are 9 not. They are both on Cape Cod, I believe. 10 With respect to Mr. Bergeron, I guess we would 11 simply request the wisdom of the Court. He has gone out of 12 his way to make himself troublesome. He seems to be asking 13 the Court to enter sanctions. We have no desire for him to be 14 involved in the lawsuit. We have no desire to encourage him 15 to carry on the battle in any other forum. And yet he has 16 admittedly blatantly, and in a very immature fashion, been not 17 only defying the Court's orders, but mocking the Court's 18 authority. And we would just trust to the Judge's discretion 19 in determining the best course of action for dealing with 20 someone like that. 21 THE COURT: When do you expect to tender your order? 22 MR. RICHARDSON: Is the end of the week sufficient, 23 Your Honor? 24 THE COURT: Well, aren't you going to take a 25 holiday? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 66 of 75 HICKS - DIRECT / RICHARDSON 66 1 MR. RICHARDSON: I'm going to take a holiday next 2 week, so -- 3 THE COURT: Well, let's just say as soon as 4 reasonably possible. 5 MR. RICHARDSON: If that would be sufficient, thank 6 you, I appreciate that. 7 THE COURT: I know what will happen, you'll make 8 Ms. Lucas -- 9 MR. RICHARDSON: We'll put her on the work. 10 THE COURT: -- do all the work on the holiday. 11 Whatever it is, as soon as possible so that we can 12 get this matter resolved. 13 And also, the distillation that you're going to 14 provide with respect to these documents, that will be helpful 15 as well. 16 MR. RICHARDSON: Thank you. 17 THE COURT: Anything else? 18 (Off-the-record discussion.) 19 THE COURT: Mr. Frische has some good additional 20 questions for the Court to inquire about. 21 First of all, have you had any recent and/or 22 independent communication with Mr. Bergeron about this case, 23 this hearing, the Court's order? 24 MR. RICHARDSON: No, Your Honor. I believe it was a 25 week before last was my last e-mail from Mr. Bergeron. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 67 of 75 HICKS - DIRECT / RICHARDSON 67 1 THE COURT: And what was it pertaining to? 2 (Off-the-record discussion.) 3 MR. RICHARDSON: Oh, we did get an e-mail from 4 Mr. Bergeron saying these are service copies of submissions he 5 made yesterday. So we've got -- we did get an e-mail from him 6 yesterday saying these are service on behalf of Lucille of, I 7 believe, the writ of mandamus that was filed yesterday. 8 THE COURT: So he appears to be her legal advisor? 9 MR. RICHARDSON: Yes, he appears to still be acting 10 in that capacity. 11 THE COURT: Has he made any statements to you that 12 were inculpatory to himself with respect to the violation of 13 the Court's order? 14 MR. RICHARDSON: I would say nothing beyond what is 15 already in the affidavits of counsel that we've previously 16 submitted. The last substantive e-mail I got from 17 Mr. Bergeron was June 6th. 18 THE COURT: What does the substantive e-mail mean? 19 MR. RICHARDSON: With several paragraphs of 20 narrative, which I regard as being more of the same that has 21 already been submitted. 22 THE COURT: Is that part of the submissions you've 23 made with your affidavit? 24 MR. RICHARDSON: It is not. This is the only one 25 since the 6th affidavit, I believe. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 68 of 75 HICKS - DIRECT / RICHARDSON 68 1 THE COURT: Do you want the Court to consider it? 2 MR. RICHARDSON: I was not going to ask the Court to 3 consider it. 4 THE COURT: All right. There was another lawsuit in 5 which apparently a Dr. Feldman sued Ms. Iacovelli in 6 Massachusetts and got a restraining order? 7 MR. RICHARDSON: I understand that is correct. I 8 believe that was in Massachusetts state court if I understand 9 correctly. 10 THE COURT: I just knew it was Massachusetts. So 11 have you looked at that order? 12 MR. RICHARDSON: I did. To my understanding, it 13 just lapsed on its own terms. I think it was a TRO that never 14 matured into a preliminary injunction to the best of my 15 ability. 16 THE COURT: Was it an order restraining her from the 17 same kind of Internet -- 18 MR. RICHARDSON: It was much more specific on it. 19 There were before and after pictures that she had posted that 20 were specific to the surgery performed by Dr. Feldman, and it 21 was an injunction that was specifically directing her to take 22 down those pictures, if I recall correctly. 23 Is that right, Joe? 24 THE COURT: Well, do you know the outcome of the 25 litigation; is it still pending? Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 69 of 75 HICKS - DIRECT / RICHARDSON 69 1 MR. RICHARDSON: To the best of my knowledge, the 2 TRO never matured into a preliminary injunction and she put 3 the pictures back up. And I don't believe there is a pending 4 proceeding now. 5 I can tell you that I called Dr. Feldman's counsel 6 at the beginning of the case, and they expressed no interest 7 in getting involved in this proceeding. 8 THE COURT: You can understand why. 9 MR. RICHARDSON: Well, I wonder myself sometimes. 10 THE COURT: Have you made a request for the 11 computers? Have you made a discovery request to do a forensic 12 examination on the computers? 13 MR. RICHARDSON: Yes, on Ms. Iacovelli's computer 14 and her backup data. That was the production request for 15 which there was no response that led to the Rule 37 motion. 16 THE COURT: And you're asking for a computer that 17 you can specify based on the materials that have been 18 produced; is that right? 19 MR. RICHARDSON: Yes. 20 THE COURT: Does it have that IP number associated 21 with it? 22 MR. RICHARDSON: I have not analyzed it in terms of 23 IP number, but to the best of my understanding, it's her 24 personal computer in her home that she uses for all of her 25 publications. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 70 of 75 HICKS - DIRECT / RICHARDSON 70 1 THE COURT: But when you get a domain name, if I 2 understand what Mr. Hicks said, it's pegged to the IP number? 3 MR. RICHARDSON: Yes. Well, yeah, she does 4 interactive. 5 THE COURT: And it correlates to a computer; is that 6 right? 7 MR. RICHARDSON: Correct, correct. 8 THE COURT: So if she's using a domain name that's 9 involved in this case and is injurious allegedly to the 10 plaintiff's interests, you could figure out which computer 11 that is by virtue of the IP number? 12 MR. RICHARDSON: Correct. 13 THE COURT: And that IP number is available through 14 the contract with the registrant? 15 MR. RICHARDSON: Yes. 16 THE COURT: The registrar I should say. 17 MR. RICHARDSON: The registrar. 18 THE COURT: The registrar. But is it available any 19 other way? I mean, can you derive it from any of the data 20 that you have pulled over the Internet? 21 MR. RICHARDSON: Not that I am aware of. I have not 22 conducted a forensic investigation on that particularly, Your 23 Honor. 24 THE COURT: So to the extent that Mr. Bergeron's 25 computer may be used to put stuff on the Internet rather than Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 71 of 75 HICKS - DIRECT / RICHARDSON 71 1 Ms. Iacovelli's, he would have to have a separate IP number, 2 right? 3 MR. RICHARDSON: Correct, yes. 4 THE COURT: So could you find that out if the 5 information could be had from whoever it was that -- 6 MR. RICHARDSON: And if I could, this may clarify. 7 The stuff that Mr. Bergeron has put out on the Internet about 8 the lawsuit and about the Court has generally been on sites 9 that he registered himself through godaddy, and there's three 10 of them specifically that are -- that were all registered 11 through godaddy. 12 The publications by Ms. Iacovelli -- almost none of 13 that has been on sites that she registered herself. Instead, 14 it's been on interactive websites like YouTube and like these 15 blogging services, some of which have subscription fees and 16 some of which don't, but where she is one of a multitude of 17 bloggers that has an account that she publishes on. 18 So a forensic examination of her computer would 19 determine the full extent of all of her Internet activities 20 whether they were on sites she registered herself or on 21 interactive sites where she holds accounts. 22 THE COURT: So in terms of a possible sanction for 23 the discovery failures, the Court could order the 24 relinquishment of those computers? 25 MR. RICHARDSON: That is correct, yes. Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 72 of 75 HICKS - DIRECT / RICHARDSON 72 1 THE COURT: If you can identify them with sufficient 2 particularity. 3 MR. RICHARDSON: Thank you. I will endeavor to do 4 that. 5 THE COURT: That might permit the investigations to 6 go forward so you can figure out who's coming up with the 7 information that is defamatory -- 8 MR. RICHARDSON: Very good. 9 THE COURT: -- as alleged. 10 Okay. I have one other matter and that has to do 11 with the defendant's Rule 11 motion -- 12 MR. RICHARDSON: Yes, Your Honor. 13 THE COURT: -- against you and your firm. 14 MR. RICHARDSON: Understood. 15 THE COURT: -- for bringing an unfounded lawsuit. 16 Did you file a written response to that? 17 MR. RICHARDSON: We did file a written response. 18 THE COURT: Do you have anything you want to say 19 about that? 20 MR. RICHARDSON: I would just say briefly that the 21 theory of the Rule 11 motion is flatly contradicted and 22 inconsistent with the Court's preliminary injunction rule. 23 The Court, based on substantial evidence of record and live 24 testimony that went unopposed from the defendant, based a 25 ruling on sound legal grounds. And the Rule 11 motion now Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 73 of 75 HICKS - DIRECT / RICHARDSON 73 1 suggests that the very claims that this Court has found a 2 likelihood of success are, in fact, so frivolous as to be 3 subject to sanction. And we would submit that the record is 4 clearly to the contrary. 5 THE COURT: All right. The Court so finds that the 6 Rule 11 motion is unfounded. It does not correspond to the 7 requirements for such relief. Rule 11B sets out the standards 8 that attorneys must abide by in these terms "by presenting to 9 the Court a pleading, written motion or other paper whereby 10 signing, filing, submitting or later advocating it, and an 11 attorney or unrepresented party certifies that to the best of 12 the person's knowledge, information, belief, formed after an 13 inquiry reasonable under the circumstances," and then it 14 specifies four subparagraphs of implicit representations with 15 respect to the validity and the legal appropriateness of the 16 claims that are being made, including that the filings not be 17 made for any improper purpose such as to harass, cause 18 unnecessary delay, or needless cost of litigation, that they 19 are warranted by existing law or by some nonfrivolous argument 20 for extending, modifying or reversing existing law, that the 21 factual contentions have evidentiary support and that the 22 denials of factual contentions are warranted on the basis of 23 the evidence. 24 I find nothing in the plaintiff's submissions that 25 are violative of any of those standards or requirements, and Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 74 of 75 HICKS - DIRECT / RICHARDSON 74 1 so the Rule 11 motion is denied. 2 That's all that I have that I know of that I need to 3 address today in terms of the pending motions. Do you have 4 anything else? 5 MR. RICHARDSON: No, Your Honor. That's it. 6 THE COURT: The Court thus has under advisement the 7 pending motions for contempt sanctions and Rule 37 sanctions, 8 and will await the post-hearing submissions by plaintiff after 9 which the Court will make an effort to render and hand down a 10 timely ruling. 11 So thank you very much, Mr. Richardson. 12 MR. RICHARDSON: Thank you, Your Honor. 13 THE COURT: We will see you again. 14 (Court adjourned at 4:10 p.m.) 15 16 17 18 19 20 21 22 23 24 25 Case 1:09-cv-00386-SEB-JMS Document 110 Filed 08/07/09 Page 75 of 75 HICKS - DIRECT / RICHARDSON 75 1 CERTIFICATE OF COURT REPORTER 2 3 4 I, Laura Howie-Walters, hereby certify that the 5 foregoing is a true and correct transcript from reported 6 proceedings in the above-entitled matter. 7 8 9 /S/LAURA HOWIE-WALTERS August 7th, 2009 10 LAURA HOWIE-WALTERS, RPR/CSR Official Court Reporter 11 Southern District of Indiana Indianapolis Division 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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